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Farrar-Welden-Swensson-Powell v Obama, Amicus Brief From Attorney Donofrio, Georgia Ballot Challenge - 1/23/2012

Farrar-Welden-Swensson-Powell v Obama, Amicus Brief From Attorney Donofrio, Georgia Ballot Challenge - 1/23/2012

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Farrar-Welden-Swensson-Powell v Obama, Amicus Brief From Attorney Donofrio, Georgia Ballot Challenge - 1/23/2012 - http://www.BirtherReport.com

Farrar-Welden-Swensson-Powell v Obama, Amicus Brief From Attorney Donofrio, Georgia Ballot Challenge - 1/23/2012 - http://www.BirtherReport.com

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Published by: ObamaRelease YourRecords on Jan 23, 2012
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OFFICE OF STATE ADMINISTRATIVE HEARINGS

DAVID FARRAR,
LEAH LAX, CODY
JUDY, THOMAS
MALAREN, LAURIE
ROTH, Plaintiffs,
v.
BARACK OBAMA,
Defendant.
DAVID P. WELDEN,
Plaintiff,
v.
BARACK OBAMA,
Defendant.
CARL SWENSSON,
Plaintiff,
v. BARACK
OBAMA, Defendant.
KEVIN RICHARD POWELL,
Plaintiff,
v. BARACK
OBAMA,
STATE OF GEORGIA
AMICUS BRIEF and
APPENDIX
by:Leo C. Donofrio, Esq.,
Amicus Curia, Jan. 23, 2012
: Docket Number: OSAH-SECSTATE-CE-
:1215136-60-MALIHI Counsel for Plaintiffs:
Orly Taitz Counsel for Defendant: Michael
Jablonski
: Docket Number: OSAH-SECSTATE-CE-
:1215137-60-MALIHI :Counsel for Plaintiff:
Van R. Irion Counsel for Defendant: Michael
Jablonski
: Docket Number: OSAH-SECSTATE-CE-
:1216218-60-MALIHI :Counsel for Plaintiff: J.
Mark Hatfield ;Counsel for Defendant: Michael
Jablonski
: Docket Number: OSAH-SECSTATE-CE:
1216823-60-MALIHI :Counsel for Plaintiff: J.
Mark Hatfield Counsel for Defendant: Michael
Jablonski
Defendant.
ii
TABLE OF CONTENTS
Statement of compliance with Georgia Rule of Administrative Procedure, 616-1-2-.04…1
STATEMENT OF FACTS………………………………………………………………..1
PROCEDURAL HISTORY………………………………………………………………1
QUESTION PRESENTED……………………………………………………………….1
SUMMARY OF ARGUMENT…………………………………………………………1-2
LEGAL ARGUMENT……...…………………………………………………………2-52
CONCLUSION………………………………………………………………………….52
SIGNATURE AND
CERTIFICATION……………………………………………………………………….53
PROOF OF SERVICE…………………………………………………………………...54
APPENDIX: ………………………………………………………………………55-207
(References to the appendix appear as follows, “(App. Pg. 60.)”
Statement of compliance with Georgia Rule of Administrative Procedure, 616-1-2-.04.
Every legal authority cited in this brief, not issued by the State of Georgia or the Federal
Government, has been attached in an appendix. This brief also contains the requested
signature, contact information and a certification that the brief has not been filed for any
improper purpose, as well as a proof of service.
1
STATEMENT OF FACTS
This brief assumes President Obama was born in the State of Hawaii, on August 4, 1961.
The President’s mother, Stanley Ann Dunham, a natural-born citizen of the United States,
was eighteen years old when the President was born.
The President’s father, Barrack Hussein Obama, was a British subject admitted into the
United States on a temporary student visa, with the express condition that he was a
“nonimmigrant student”. (App. Pg. 55.) The President’s father never became a U.S.
citizen; never applied for U.S. citizenship; never declared an intention to become a U.S.
citizen; never became a resident alien; and was never domiciled in the United States.
PROCEDURAL HISTORY
On November 1, 2011, the Democratic Party of Georgia notified the Georgia
Secretary of State that the only candidate that should appear on the Democratic
Presidential primary ballot would be Barack Obama. Pursuant to O.C.G.A.
section 21-2-5 the several Plaintiffs filed timely challenges with the Secretary of
State. Said challenges alleged, generally, that defendant Obama is not
Constitutionally qualified to hold the office of President. Those challenges were
referred, by the Secretary of State, to this Court. Defendant Obama responded
with a motion to dismiss, filed on December 15, 2011. That motion was denied by
this Court on January 3, 2011. On December 20, 2011, this Court consolidated the
challenges filed against Defendant Obama. A motion for separate hearings was
granted. The several challenges are now set for hearings on January 26, 2011.
QUESTION PRESENTED
I. WHETHER PRESIDENT OBAMA IS A NATURAL BORN CITIZEN
ACCORDING TO THE REQUIREMENTS OF ARTICLE 2, SECTION 1, OF
THE UNITED STATES CONSTITUTION?
SUMMARY OF ARGUMENT
President Obama is not a natural-born citizen of the United States, as defined by the
United States Supreme Court in Minor v. Happersett, 88 U.S. 162 (1874), wherein the
2
Court identified, as natural-born citizens, only those who are born in the United States of
citizen parents. That the holding in Minor v. Happersett was applicable only to persons
born in the country of two citizen parents was confirmed in U.S. v. Wong Kim Ark, 169
U.S. 649 (1898), where the Court approvingly reiterated the exact passage from Minor
that defined the natural-born citizen class, not modifying it, or questioning it all.
Since the Supreme Court, in Minor v. Happersett, directly construed the Article 2,
Section 1, natural-born citizen clause, to determine the citizenship status of the petitioner,
the Court’s definition of the natural-born citizen class is precedent.
Additionally, the English common law term, “natural-born subject”, being a uniquely
spiritual designation, was only granted to members of the Christian faith, and cannot
govern the definition of “natural born Citizen”, because such a construction would be
repugnant to the 1
st
Amendment of the United States Constitution.
Since President Obama does not qualify as a member of the class of persons identified as
natural-born citizens by the U.S. Supreme Court, he is not eligible to be President of the
United States, and his name, therefore, should not be allowed on Georgia ballots for the
2012 Presidential election.
LEGAL ARGUMENT.
I. WHETHER PRESIDENT OBAMA IS A NATURAL BORN CITIZEN
ACCORDING TO THE REQUIREMENTS OF ARTICLE 2, SECTION 1, OF
THE UNITED STATES CONSTITUTION?
A. According To Precedents of Statutory Construction, The 14th Amendment Has
Not Repealed Or Modified The Natural Born Citizen Clause.
The U.S. Constitution provides the requirements for the office of President at Article 2,
Section 1, Clause 5:
"No person except a natural born Citizen, or a Citizen of the United States, at the
time of the Adoption of this Constitution, shall be eligible to the Office of
President;
The 14th Amendment states:
"All persons born or naturalized in the United States, and subject to the
jurisdiction thereof, are citizens of the United States and of the state wherein they
reside."
3
The "natural born Citizen" clause pertains to the civic status required to be eligible for
public office, whereas the 14th Amendment specifically confers the political status of
membership in the nation.
Neither clause contradicts, nor limits the other. While 14th Amendment citizens may be
eligible for the office of President, the Amendment does not automatically establish
eligibility. If the 14th Amendment had been intended to repeal the natural-born citizen
clause, then it would contain specific language to that extent. To imply that it does,
would require a complete abandonment of long-established rules of statutory
construction:
"Where there is no clear intention otherwise, a specific statute will not be
controlled or nullified by a general one, regardless of the priority of enactment.
See, e. g., Bulova Watch Co. v. United States, 365 U.S. 753, 758 (1961); Rodgers
v. United States, 185 U.S. 83, 87 -89 (1902).
“The courts are not at liberty to pick and choose among congressional
enactments, and when two statutes are capable of co-existence, it is the duty of the
courts, absent a clearly expressed congressional intention to the contrary, to
regard each as effective. "When there are two acts upon the same subject, the rule
is to give effect to both if possible . . . The intention of the legislature to repeal
`must be clear and manifest.'” United States v. Borden Co., 308 U.S. 188, 198
(1939)." Morton v. Mancari, 417 U.S. 535, 550-551 (1974).
The 14th Amendment, and the natural-born citizen clause are very capable of co-
existence. The Amendment is our general citizenship clause, while Article 2, Section 1,
provides the specific requirement for Presidential eligibility. If the legislature had
intended to repeal or modify the natural-born citizen clause with enactment of the 14th
Amendment, then, according to Supreme Court precedents in Morton v. Mancari, et al.,
the Amendment's intention to do so would have been clear and manifest, containing
language stating that all persons born in the country, and subject to the jurisdiction
thereof, are natural-born citizens. Instead, the Amendment simply states that they are
citizens.
The rule of statutory construction was reiterated in Crawford v. Gibbons:
4
"As always, "`[w]here there is no clear intention otherwise, a specific statute will
not be controlled or nullified by a general one, regardless of the priority of
enactment.' ... Morton v. Mancari, 417 U.S. 535, 550 -551 (1974). . . Any
argument that a federal court is empowered to exceed the limitations [of a
statute]. . . without plain evidence of congressional intent to supersede those
sections ignores our longstanding practice of construing statutes in pari materia.
See United States v. United Continental Tuna Corp., 425 U.S. 164, 168 -169
(1976); Train v. Colorado Public Interest Research Group, 426 U.S. 1, 24
(1976)." Crawford v. Gibbons, 482 U.S. 437, 445.
According to the Morton line of precedent, the rule requires this Court to give effect to
both clauses. And this firm tenet of statutory construction was stated even more rigidly
by Chief Justice Marshall in Marbury v. Madison, 5 U.S. 137 (1803):
"It cannot be presumed that any clause in the constitution is intended to be
without effect; and therefore such construction is inadmissible, unless the words
require it." Id. 174.
According to Chief Justice Marshall, it's not even admissible to allege that the 14th
Amendment establishes Presidential eligibility, as such a construction would render the
natural-born citizen clause to be inoperative. The only possible exception is if the words
of both clauses are not capable of co-existence, which is not the case here.
Below, this brief argues that the natural-born citizen clause requires birth in the country
to parents, both of whom are citizens. A parental citizenship requirement for Presidential
eligibility does not infringe upon birthright citizenship for persons born in the country to
alien parents. Eligibility for public office is a civic status, whereas membership in the
nation as a citizen is a political status. These are two vastly different statuses. Construing
them independently, as is required by the rule of statutory construction, allows them to
co-exist so that both are given a separate and unique effect.
Therefore, according to the controlling rules of statutory construction, we can deduce that
the 14th Amendment does not establish Presidential eligibility for all native-born citizens.
The proper construction of the natural-born citizen clause, therefore, must require
something more than simple jus soli birthright citizenship. Based upon this analysis
5
alone, it is established that simply being born in the country, subject to the jurisdiction of
the U.S., does not establish Presidential eligibility.
B. Nomenclature of the British Common Law.
Since the Constitution does not define “natural born Citizen”, the first source to be
consulted, with regard to the definition of legal terms in the Constitution, must be the
English common law:
“The constitution nowhere defines the meaning of these words, either by way of
inclusion or of exclusion, . . . In this, as in other respects, it must be interpreted in
the light of the common law, the principles and history of which were familiarly
known to the framers of the constitution. Minor v. Happersett, 21 Wall. 162; Ex
parte Wilson, 114 U.S. 417, 422 , 5 S. Sup. Ct. 935; Boyd v. U. S., 116 U.S. 616,
624 , 625 S., 6 Sup. Ct. 524; Smith v. Alabama, 124 U.S. 465 , 8 Sup. Ct. 564. The
language of the constitution, as has been well said, could not be understood
without reference to the common law. 1 Kent, Comm. 336; Bradley, J., in Moore
v. U. S., 91 U.S. 270 , 274. In Minor v. Happersett, Chief Justice Waite, when
construing, in behalf of the court, the very provision of the fourteenth amendment
now in question, said: 'The constitution does not, in words, say who shall be
natural-born citizens. Resort must be had elsewhere to ascertain that.' And he
proceeded to resort to the common law as an aid in the construction of this
provision. 21 Wall. 167. U.S. v. Wong Kim Ark, 169 U.S. 649, 654-655 (1898).
The common law generally provides the nomenclature of legal terminology. But the
entire common law system was never adopted as the federal law of the United States. The
common law simply acts as a dictionary in defining legal terms of art:
"There is no common law of the United States, in the sense of a national
customary law, . . . Wheaton v. Peters, 8 Pet. 591. . . There is, however, one clear
exception to the statement that there is no national common law. The
interpretation of the constitution of the United States is necessarily influenced by
the fact that its provisions are framed in the language of the English common law,
and are to be read in the light of its history. The code of constitutional and
statutory construction which, therefore, is gradually formed by the judgments of
6
this court, in the application of the constitution and the law and treaties made in
pursuance thereof, has for its basis so much of the common law as may be implied
in the subject, and constitutes a common law resting on national authority.
Moore v. U. S.,91 U.S. 27.” Smith v. Alabama, 124 U.S. 465, 478 (1888).
The English common law should be consulted to define words and terms of legal art that
originated in English jurisprudence. This approach was taken by Chief Justice Waite in
Minor v. Happersett, 88 U.S. 162 (1874):
"The Constitution does not, in words, say who shall be natural-born citizens.
Resort must be had elsewhere to ascertain that. At common-law, with the
nomenclature of which the framers of the Constitution were familiar, it was never
doubted that all children born in a country of parents who were its citizens
became themselves, upon their birth, citizens also. These were natives, or natural-
born citizens, as distinguished from aliens or foreigners." Id. 167. (Emphasis
added.)
Nomenclature is defined as a system of naming things. And the English common law
provides our general understanding of legal terms. The etymology of the ancient common
law designation, "natural-born subject", must, therefore, be consulted with regard to both
jus soli, and jus sanguinis concepts.
i). Natural Allegiance - Via Jus Soli - Was A Uniquely Christian Point Of Law
Repugnant To The First Amendment Of The United States Constitution.
The common law rule of jus soli subjection is a complex spiritual concept, which does
not simply relate to birth on British soil. Despite popular belief, the common law
meaning of "natural-born" is not synonymous with "native-born". The true nomenclature
of "natural-born subject" is rooted in “natural subjection” to the spiritual body of Christ,
and therefore our Constitution forbids any construction of the "natural-born citizen"
clause that alleges the term to be synonymous with "natural-born subject".
In 1608, the English common law, as to jus soli, was determined in the famous decision
of Calvin's Case, 7 Coke Report 1a, 77 ER 377 (1608):
“The fundamental principle of the common law with regard to English nationality
7
was birth within the allegiance-also called 'ligealty,' 'obedience,' 'faith,' or
'power'-of the king.
“This fundamental principle, with these qualifications or explanations of it, was
clearly, though quaintly, stated in the leading case known as 'Calvin's Case,' or
the 'Case of the Postnati,' decided in 1608, after a hearing in the exchequer
chamber before the lord chancellor and all the judges of England, and reported
by Lord Coke and by Lord Ellesmere. Calvin's Case, 7 Coke, 1, 4b-6a, 18a, 18b;
Ellesmere, Postnati, 62-64; s. c. 2 How. St. Tr. 559, 607, 613-617, 639, 640, 659,
679. U.S. v. Wong Kim Ark, 169 U.S. 649, 655-656. (See App
Calvin’s Case established the English common law rule of subjection at birth, with its
famous holding that all persons born on soil where the King's power was in force, to
parents who owed obedience to the King, were natural-born subjects. The status of the
parents as aliens made no difference, and the rule did not require the parents to have been
domiciled in the King's dominions.
Calvin's Case was a direct result of a unifying succession, through King James, of the
separate kingdoms of England and Scotland. Despite sharing the same monarch, each
kingdom retained its own laws and parliaments. In England, only British subjects could
inherit and be inheritable, so the question before the court was whether a person born in
Scotland, after the unification of the thrones, was an English subject who could inherit
lands in England. The Court of King’s Chamber held that the plaintiff (Calvin) could
inherit as an English subject because, despite being born in Scotland as a subject thereof,
he was naturalized at birth by the law of nature which vested the spiritual power of God
in the physical body of the King, so that the subjects of each of the two separate nations
owed direct allegiance to the one natural body of the King, rather than to his separate
body politic of each nation:
"Wherefore to conclude this point (and to exclude all that hath been or could be
objected against it) if the obedience and ligeance of the subject to his sovereign
be due by the law of nature, if that law be parcel of the laws, as well of England,
as of all other nations, and is immutable, and that postnati and we of England are
united by birthright, in obedience and ligeance (which is the true cause of
8
natural subjection) by the law of nature; it followeth that Calvin the plaintiff
being born under one ligeance to one King, cannot be an alien born;" 7 Coke
Report 14 b, 77 ER pg. 394. (Emphasis added.) (App. Pgs. 71-72.)
The subjects of Scotland and England were naturalized, one to another, by the fact of
their being born under one allegiance to the King. Natural allegiance was not directly
owed to the laws or government of England or Scotland, nor did the soil create natural
allegiance. The natural allegiance that creates natural subjection is owed to the same
natural body of the King. It is this natural allegiance, born of the law of nature, which
unifies the subjects:
"That ligeance or obedience of the subject to the Sovereign is due by the law of
nature: 2. That this law of nature is part of the laws of England: 3. That the law
of nature was before any judicial or municipal law in the world:, 4. That the law
of nature is immutable, and cannot be changed." 7 Coke Report 4 b, 77 ER pg.
382. (App. Pg. 60.)
And the law of nature was held to be the law of God:
"The Law of Nature is that which God at the time of creation of the nature of man
infused into his heart, for his preservation and direction; and this is lex aeterna,
the Moral Law, called also the Law of Nature. And by this Law, written with the
finger of God in the heart of man, were the people of God a long time governed,
before that Law was written by Moses, who was the first Reporter or Writer of
Law in the world. . . By this Law of Nature is the Faith, Ligeance, and
Obedience of the Subject due to his Sovereign or Superiour. . . This Law of
Nature, which indeed is the eternal Law of the Creator, infused into the heart of
the creature at the time of his creation, was two thousand years before any Laws
written, and before any Judicial or Municipal Laws. . .” 7 Coke Report 13 a, 77
ER pg. 392. (Emphasis added.) (App. Pg. 70.)
Calvin's Case is often misunderstood with regard to the general popular understanding of
the jus soli rule, and more specifically to the exact meaning of the term, “natural-born”.
To be a "natural-born subject" of England, according to the ruling of Calvin's Case, does
not, technically, relate directly to birth on the soil, but rather to birth within the power of
9
the King, as the spiritual head of God's church. Natural allegiance is born from that
power being in force throughout the King's dominions and realms. So, despite Scotland
and England being separate nations, with separate laws and governments, the subjects of
each, born after unification of the thrones, were naturalized one to another by the spiritual
power of the King, to whom the subjects of each separate nation owed a single, unified
allegiance from birth:
"The 2d. is an union of ligeance and obedience of the subjects of both kingdoms,
due by the law of nature to their sovereign: and this union doth suffice to rule and
overrule the case in question: and this in substance is but a uniting of the hearts
of the subjects of both kingdoms one to another, under one head and sovereign." 7
Coke Report 14 b, 77 ER pg. 394. (App. Pg. 72.)
Those born in England were naturalized as Scottish subjects, and those born in Scotland
were naturalized as English subjects. The natural allegiance that creates a natural-born
subject was directly owed to the King's physical person as the spiritual leader of God's
Kingdom on Earth:
"It is true, that the King hath two capacities in him: one a natural body, being
descended of the blood Royal of the realm; and this body is of the creation of
Almighty God, and is subject to death, infirmity, and such like; the other is a
politic body or capacity, so called, because it is framed by the policy of man (and
in 21 E. 4. 39. b. is called a mysticall body;) and in this capacity the King is
esteemed to be immortal, invisible, not subject to death, infirmity, infancy, (a)
nonage, &c. Pl. Com. in the case of The Lord Barkley, 238. and in the case of The
Duchy 213. 6 E. 3. 291. and 26 Ass pl. 54. Now, seeing the King hath but one
person, and several capacities, and one politic capacity for the realm of England,
and another for the realm of Scotland, it is necessary to be considered, to which
capacity ligeance is due. And it was resolved, that it was due to the natural
person of the King (which is ever accompanied with the politic capacity, and the
politic capacity as it were appropriated to the natural capacity), and it is not due
to the politic capacity only, that is, to his Crown or 'kingdom distinct from his
natural capacity, and that for divers reasons. First- every subject (as it hath been
affirmed by those that argued against the plaintiff) is presumed by law to be
sworn to the King, which is to his natural person, and likewise the King is sworn
10
to his subjects, (as it appeareth in Bracton, lib. 3. de Actionibus, cap. 9. fol. 107)
which oath he taketh in his natural person: for the politic capacity is invisible and
immortal; nay, the politic body hath no soul, for it is framed by the policy of
man." 7 Coke Report 10 b, 77 ER pgs. 388-389. (Emphasis added.) (App. Pg. 67.)
The King has two bodies; a natural body, and a political body. The political body has no
soul. It is unnatural. And therefore, natural allegiance is due to the King in his natural
body. It is this natural allegiance that is referred to in the phrase, natural-born subject.
Any other allegiance due to the laws and government of each nation ruled by the same
monarch was deemed to be unnatural, and inapplicable:
“Now seeing power and protection draweth ligeance, it followeth, that seeing the
King’s power, command and protection, extendeth out of England, that ligeance
cannot be local, or confined within the bounds thereof. He that is abjured the
Realm, Qui abjurat regnum amittit regnum, sed non Regem, amittit patriam, sed
non patrem patriae: for notwithstanding the abjuration, he oweth the King his
ligeance, and he remaineth within the King’s protection; for the King may pardon
and restore him to his country again. So as seeing that ligeance is a quality of the
mind, and not confined within any place; it followeth, that the plea that doth
confine the ligeance of the Plaintiff to the kingdom of Scotland, infra ligeantiam
Regis regni sui Scotica, et extra ligeantiam regis regni sui Angliae, whereby the
Defendants do make one local ligeance for the natural subjects of England, and
another local ligeance for the natural subjects of Scotland, is utterly unsufficient,
and against the nature and quality of natural lineage, as often it hath been said.”
7 Coke Report 9 b, 77 ER pg. 388. (App. Pg. 66.)
As the King of both Scotland and England, he has one body politic for each country, but
as a man he has but one natural body. If the subjects owed allegiance to the body politic,
then they would be aliens to each other, but since the tie of natural allegiance was owed
to the natural body of the King, the subjects share the same allegiance by the same
ligament of faith. Hence, though there were two nations, the subjects of each, were, at
birth, naturalized, one to another.
The common law meaning of the term - natural-born subject - is absolutely religious in
nature; so much so, that, at common law, "infidels" - all non-Christians - were never
11
considered to be natural-born subjects, even if born in England (or Scotland) to parents
who were domiciled there. This would change according to modern statutes and Royal
consent, but the English common law, as discussed by Lord Coke in Calvin’s Case, was
absolutely certain on this point.
It is a popular fallacy that Calvin's Case created a rule by which all persons born on the
soil were natural-born subjects, for it was held in that case, that natural allegiance, as it
creates natural subjection, was a completely spiritual, and uniquely Christian, tenet of
law:
"All infidels are in law perpetui (d) inimici, perpetual enemies (for the law
presumes not that they will be converted, that being remota potentia, a remote
possibility) for between them, as with the devils, whose subjects they be, and the
Christian, there is perpetual hostility, and can be no (a) peace; for as the Apostle
saith, 2 Cor. 6. 15. Quæ autem conventio Christi ad Belial, aut quæ, pars fideli
cum infideli, and the law saith, Judæo Christianum nullum serviat mancipium,
nefas enim est quem, Christus redemit blasphemum, Christi in servitutis vinculis
detinere. Register 282. Infideles sunt Christi et Christianorum inimici. And
herewith agreeth the book in 12 H. 8. fol. 4. where it is holden that a Pagan
cannot have or maintain any action at all (I)." 7 Coke Report 18 a, 77 ER pg.
397. (App. Pg. 75.)
It is a well-known maxim of the common law that children born in the King’s realms of
hostile enemy parents are not natural-born subjects, but aliens at birth. Yet, the above
quoted passage makes clear that the children of spiritual enemies are also aliens born.
The hostile enemies rule was discussed by Justice Gray in Wong Kim Ark, where,
unfortunately, he chose to ignore the spiritual aspect of the rule. This oversight has led to
a fundamental misunderstanding, in the United States, of the jus soli concept as applied
by the English common law:
"'Subject to the exceptions hereinafter mentioned, any person who (whatever the
nationality of his parents) is born within the British dominions is a natural-born
British subject. This rule contains the leading principle of English law on the
subject of British nationality.' The exceptions afterwards mentioned by Mr. Dicey
are only these two: '(1) Any person who (his father being an alien enemy) is
12
born in a part of the British dominions, which at the time of such person's birth
is in hostile occupation, is an alien.' '(2) Any person whose father (being an
alien) is at the time of such person's birth an ambassador or other diplomatic
agent accredited to the crown by the sovereign of a foreign state is (though born
within the British dominions) an alien.' ...Dicey, Confl. Laws, pp. 173-177, 741.”
U.S. v. Wong Kim Ark, 169 U.S. 649, 657-658. (Emphasis added.)
Justice Gray failed to mention that alien enemies, at the common law, included all
infidels. All non-Christians were infidels. Even if the parents were pacifists from nations
not at war with the throne, their status as infidels made them, at the common law, alien
enemies of the King, since, as Lord Coke put it, they were considered to be subjects of
devils who "the law presumes" will never be converted.
Spiritual enemies are not recognized by the laws of the United States, and neither is
natural law part of our secular jurisprudence. Therefore, a necessary and proper
consultation of the nomenclature of the common law, forbids any construction of the
natural-born citizen clause that relies upon the English common law concept of natural
allegiance.
Many colonial statutes in force prior to the Revolution granted the status of "natural-born
subject" only to members of the Christian faith, so the framers were certainly aware of
the spiritual element governing the term "natural-born subject". For example, two
naturalization statutes in New York contained similar provisions. The title of an act
passed on Nov. 1, 1683, was:
"AN ACT for naturalizing all those of foreigne Nations at present inhabiting
within this province and professing Christianity, and for Encouragement of others
to come and settle within the same." Laws Of The Colony Of New York, Vol. I,
pg. 123. (App. Pg. 96.)
The title of an act passed on July 5, 1715, was:
"An Act declaring that all Persons of Foreign Birth Inhabiting within this Colony
and dying Seized of any Lands Tenements or Hereditaments shall be forever
hereafter Deemed Taken and Esteemed to have been Naturalized, and for
Naturalizing all Protestants of Foreign Birth now Inhabiting within this Colony."
13
Laws Of The Colony Of New York, Vol. I, pg. 858. (App. Pg. 97.)
Based upon these statutes, it is obvious that the colonies brought with them the spiritual
elements of the common law. But after the Revolution, with the adoption of the
Constitution (which never would have been ratified without the promised Bill of Rights),
and the subsequent ratification of the 1st Amendment, this country abandoned all
spiritual elements of the common law in favor of a secular government, which, by
intellectual design, specifically forbid the establishment of religion.
Therefore, with regard to the term, "natural-born subject", as it relates to the jus soli rule,
this nation specifically rejected that our citizens owed natural allegiance - as defined by
the common law - with specific reference to the natural law of God. Instead, the citizens
of this nation owe allegiance to the collective body politic, to which each member is a
sovereign part. And, according to the common law, as announced in Calvin's Case,
allegiance to the body politic is unnatural, since, "[T]he politic body hath no soul, for it
is framed by the policy of man." 7 Coke Report 10 b, 77 ER pg. 389. (Emphasis added.)
As such, it is both, intellectually dishonest, as well as absolutely unconstitutional, for the
"natural born Citizen" clause to be interpreted as being synonymous with the common
law term, "natural-born subject", as that term is understood in relation to jus soli
subjection.
The issue of allegiance being owed to the natural body of the King was briefly, and
erroneously, alluded to by Justice Gray in Wong Kim Ark:
" 'The doctrine of the common law is that every man born within its jurisdiction is
a subject of the sovereign of the country where he is born; and allegiance is not
personal to the sovereign in the extent that has been contended for; it is due to
him in his political capacity of sovereign of the territory where the person owing
the allegiance was born.' Kilham v. Ward (1806) Id. 236, 265." U.S. v. Wong
Kim Ark, 169 U.S. 649, 663.
Justice Gray is quoting a Massachusetts case, where the opinion expressed above was by
a single Judge, not the opinion of the entire court. Furthermore, Justice Sewell (and
Justice Gray) simply got it wrong. This quotation completely misstates the common law
rule of natural allegiance established in Calvin's Case. And Justice Gray added further
14
confusion to the issue:
"It may here be observed that in a recent English case Lord Coleridge expressed
the opinion of the queen's bench division that the statutes of 4 Geo. II. (1731) c.
21, and 13 Geo. III. (1773) c. 21 (hereinafter referred to), 'clearly recognize that
to the king in his politic, and not in his personal, capacity, is the allegiance of his
subjects due.' Isaacson v. Durant, 17 Q. B. Div. 54, 65." U.S. v. Wong Kim Ark,
169 U.S. 649, 663.
Isaacson v. Durant was decided in 1886, and could not have possibly influenced the
framers. Furthermore, the decision in that case, decided one hundred years after the
adoption of the Constitution, was that the statutes modified the pre-existing common law.
It is well established that the United States looks to the English common law for
nomenclature clarification, and not to English statutory law. Furthermore, since there was
no judicial determination which observed this modification of the common law until
1886, the framers would certainly not have taken it upon themselves to imagine, and
invoke, a statutory modification that wasn’t observed by the English courts until one
hundred years later.
Additionally, no American Judge has the ability to change the common law of England:
"No courts other than English courts can determine definitely and finally what the
law of England is, and the common law of England on any subject cannot
possibly be different from the final and settled determinations of the highest court
in England. The common law of England is what the English courts make it. The
courts of New York and Illinois may express an opinion as to the common law of
England, but they cannot by any possibility make the law of England as the
English courts in fact make it . . ." “The English Common Law In The United
States”, by Herbert Pope, Harvard Law Review, Vol. 24, No. 1, pg. 6, 13-14
(Nov., 1910.) (App. Pg. 108-109.)
Calvin's Case was decided in the Court of King's Bench, which was the tribunal for all
matters involving the monarch. Therefore, its determination in Calvin's Case has always
been held as the common law on the issue of natural allegiance. The common law is
established by the first judicial determination on the point in question:
15
"As it does not rest on any statute or other written declaration of the sovereign,
there must, as to each principle thereof, be a first statement. Those statements are
found in the decisions of courts, and the first statement presents the principle as
certainly as the last. Multiplication of declarations merely adds certainty. For
after all, the common law is but the accumulated expressions of the various
judicial tribunals in their efforts to ascertain what is right and just between
individuals in respect to private disputes." Kansas v. Colorado, 206 U. S. 46, 96-
97 (1907).
Since religion was the basis for the English common law designation, natural-born
subject, the natural-born citizen clause cannot be synonymous with it, as this construction
would be directly repugnant to the Constitution. The 1st Amendment forbids the
establishment of religion, so the framers must have relied upon something else when they
enacted the natural-born citizen clause.
Therefore, based on all of the above, it is clear that invocation by the framers, of the term,
"natural born Citizen", in Article 2, Section 1, could not have embraced the meaning of
"natural-born subject" as that term relates to the concept of jus soli under the English
common law. Therefore, we must look elsewhere to ascertain the true definition of
"natural born Citizen".
ii). Jus Sanguinis In The British Common Law Emanates From The Natural
Relation Of Parent To Child.
We must look again to the English common law to see whether its nomenclature
embraces the term "natural-born subject" with regard to a jus sanguinis rule, which is
associated with the blood of ones parents, rather than the soil upon which one is born.
Indeed, the nomenclature of the common law does associate the jus sanguinis rule with
the term "natural-born subject". But in doing so, it’s the blood of the parents, which is
said to communicate nature to the child, rather than the spiritual power of the King
emanating throughout his realms. With regard to jus sanguinis subjection, the blood of
nature initiates natural allegiance, rather than the place of birth.
16
It is well known that many Englisg statutes, going all the way back to the14th century,
deem persons born abroad to English parents to be "natural-born subjects". But there
exists an ongoing dispute in British law as to whether these statutes were declaratory of
the common law, or whether the statutes enacted new law. This dispute began in 1351
with the Statute De Natis Ultra Mare, 25 Edw. III, and the dispute has never been
affirmatively settled. Justice Gray raised the issue in Wong Kim Ark:
"It has sometimes been suggested that this general provision of the statute of 25
Edw. III. was declaratory of the common law. See Bacon, arguendo, in Calvin's
Case, 2 How. St. Tr. 585; Westlake and Pollock, arguendo, in De Geer v. Stone,
22 Ch. Div. 243, 247; 2 Kent, Comm. 50, 53; Lynch v. Clarke, 1 Sandf. Ch. 583,
659, 660; Ludlam v. Ludlam, 26 N. Y. 536. But all suggestions to that effect seem
to have been derived, immediately or ultimately, from one or the other of these
two sources: The one, the Year Book of 1 Rich. III. (1483) fol. 4, pl. 7, reporting a
saying of Hussey, C. J., 'that he who is born beyond sea, and his father and
mother are English, their issue inherit by the common law, but the statute makes
clear,' etc.,-which, at best, was but obiter dictum, for the chief justice appears to
have finally rested his opinion on the statute. The other, a note added to the
edition of 1688 of Dyer's Reports, 224a, stating that at Trinity term 7 Edw. III.
Rot. 2 B. R., it was adjudged that children of subjects born beyond the sea in the
service of the king were inheritable,-which has been shown, by a search of the roll
in the king's bench so referred to, to be a mistake, inasmuch as the child there in
question did not appear to have been born beyond sea, but only to be living
abroad. Westl. Priv. Int. Law ( 3d Ed.) 324.
“The statute of 25 Edw. III. recites the existence of doubts as to the right of
foreignborn children to inherit in England; and, while it is declaratory of the
rights of children of the king, and is retrospective as to the persons specifically
named, yet as to all others it is, in terms, merely prospective, applying to those
only 'who shall be born henceforth.'” U.S. v. Wong Kim Ark, 169 U.S. 649, 669-
670.
Justice Gray's opinion appears to have been that the 25 Edw. III statute, as it related to the
children of subjects born abroad, was not declaratory, but that it created new law. He
therefore concluded that jus sanguinis was not a common law principle, but only a
17
statutory creation, and therefore was not adopted by the United States as a general rule of
citizenship embraced by the Constitution. Whether this view was a correct interpretation
of the common law is not important to the issue at bar. What is important is that the
nomenclature of the common law embraced jus sanguinis, and associated it directly with
the term "natural-born subject".
Important English authorities on the common law were listed by Justice Gray as having
taken the position that jus sanguinis was a legitimate principle of the common law. The
authorities cited include Francis Bacon's argument in Calvin's Case. These English
authorities contradict Justice Gray’s contention that jus sanguinis was not a common law
principle. And he failed to acknowledge a legal text published in London in 1785, just
three years before the Constitution was adopted, which provided a strong argument that
jus sanguinis was an ancient part of the common law.
In, A Supplement To The Investigation Of The Native Rights Of British Subjects, by
Francis Plowden, Esq., (London, 1785), Solicitor General Francis Bacon's statement to
the court in Calvin's Case, concerning jus sanguinis, was quoted as follows:
"I will conclude my observations upon the statute de natis ultra mare with a
repetition of Lord Bacon's words, 'By the Law of England it should suffice either
place or parents. If he be born in England, it is no matter though his parents be
Spaniards or what you will. On the other fide, if he be born of English parents, it
fkilleth not though he be born in Spain, or in any other place of the world.' Such
then is the common Law of England and with this agree Hussey, Rastal, Brook,
Fitzherbet . . ." Id. pg. 79. (App. Pg. 127.)
Plowden's text was a contemporary work, published in London only two years prior to
the Constitution having been adopted. It was available to the framers. And it thoroughly
discussed the dispute, holding that jus sanguinis subjection was, indeed, part of the
English common law, and that the 25 Edw. III was declaratory thereof.
Whether Plowden's view, or Justice Gray's opposing view, was correct has never been
firmly settled by English authorities. But the final determination of that theoretical
dispute is irrelevant to the issue now before this court. What is, however, extremely
relevant to a determination of the framers’ intent behind the natural-born citizen clause, is
18
that the nomenclature of the common law embraced the term "natural-born subject" in
relation to the jus sanguinis rule.
Since the nomenclature of the common law (if not the actual principle) acknowledged the
theory of natural-born subjection via jus sanguinis, it is perfectly rational to consider that
the framers may have enacted the natural-born citizen clause with reference to the jus
sanguinis rule, which is based upon the organic relationship of parent and child.
Furthermore, since the natural-born citizen clause only relates to the civic right of holding
public office, and not to one's political status as a citizen, it is possible for the jus
sanguinis to be incorporated into Article 2, Section 1, without infringing upon the general
rule of jus soli citizenship under the 14
th
Amendment, as was established by the holding
in Wong Kim Ark. And since we have established that the common law's spiritual usage
of the jus soli rule could not have been a Constitutional source of the natural-born citizen
clause, it becomes much more likely that the words "natural born" in Article 2, Section 1,
require citizen parents.
While "natural-born" at common law, with regard to jus soli - as per the holding in
Calvin's Case - is based entirely upon spiritual grounds, "natural born" at common law,
with regard to jus sanguinis, is initiated by the science of nature, as conveyed by the
blood of the parent giving birth to the child.
The issue was discussed in another famous case, Bacon v. Bacon, where an English
merchant married a Polish woman, and had children in Poland. The Court stated the
common law of England to be partus sequitur patrem, which means that the child follows
the condition of the father. The child born in Poland was, therefore, held to be a natural-
born subject of England. Bacon v. Bacon was analyzed by Charles Viner, Esq. in his text,
A General Abridgment of Law and Equity, Vol. 2 (1791), at pg. 262:
"A merchant trading in Poland married an alien and died leaving her big with
child. . . And per Brampfton, though the civil law is that partus sequitur ventrem,
yet our law is otherwise, and the child shall be of the father's condition, and he
being an English merchant, and residing there for merchandize, his children shall
by the common law, or rather, as Berkley said, by the statute 25 E. 3 be accounted
the king's lieges, as their father was. . . So where such merchant had several
19
children born in Poland of a Polish woman, and devised his lands in England to
such children; and it being demanded of all the justices of England at Serjeant's-
inn, as Yelverton J. said, they made no scruple any of them but that the issue
should inherit, and were not aliens, because the father went with licence, being a
merchant, and in our law partus sequitur patrem: and also there is blood
between him and his issue, and he communicates nature to them;" (Emphasis
added.) (App. Pg. 131.)
Therefore, when the common law considers jus sanguinis subjection, the father is said to
"communicate nature" to the children by the blood between them. That the nomenclature
of the common law embraced jus sanguinis in relation to creating natural-born subjects is
made perfectly clear in Bacon v. Bacon, and Viner's text.
Since the common law application of jus soli requires, as its basis of power, submission
to Christ, the framers could not have intended to incorporate the jus soli element of
natural allegiance into Article 2, Section 1. Therefore, it begins to look more and more
likely that the specific intention of the natural-born citizen clause was to require both, jus
soli, and, jus sanguinis.
iii.) Not All Natural-Born Subjects Shared The Same Civic Rights.
In the United States, a natural-born citizen is entitled to obtain the highest public office of
the nation. Such a person holds the political status of being a member of this nation, and
also stands at the pinnacle of civic status. If it is contended that the term "natural-born
subject" is synonymous with "natural-born citizen", then we should expect that all
natural-born subjects were also entitled to stand at the pinnacle of civic status bestowed
by the country. But this is not the case in England, where many natural-born subjects,
born in England, suffered a lower civic status due to their parents having been aliens.
While their political status was protected as natural-born subjects, many were deprived of
a variety of civic rights, even by the Crown, on account of their not being born of English
parents.
The plight of this class of natural-born subjects was discussed in a book, titled, Diversity
and Difference in Early Modern London, by Jacob Selwood, Ashgate Publishing (2010).
In Chapter 3, “English-born Reputed Strangers”: Birth and Descent in Theory and
20
Practice, Selwood highlights an English statute which recognized that persons born in
England of English parents enjoyed certain civic rights denied to natural-born subjects
born of alien parents:
"The 1660s were, in fact, a mixed bag, bringing new measures for the
naturalization of strangers together with the ongoing exclusion of their
Englishborn children. A 1662 statute for ‘preventing frauds and regulating
abuses in his Majesty’s customs’ contained a provision that ‘no children of aliens
under the age of twenty-one years be permitted to be traders or any goods or
merchandizes to be entered in their names.’ The full rights of all English-born
were, apparently, open to question in Westminster too, and in a manner that
received royal assent." Id. 119. (App. Pg. 133.)
The chapter discusses numerous instances where natural-born subjects were denied, by
the City of London, the same civic rights as subjects born of English parents. But in this
particular statute, the Crown itself recognized that those born of English parents enjoyed
a higher civic status.
The statute illustrates that, in England, jus sanguinis was considered relevant to civic
status, and public rights. Even after statutes were enacted to change the common law,
which restricted non-Christians from being subjects, the civic rights of non-Christians
were still restricted:
“Charles II, after his return, allowed Jews to remain, and their English-born
children became subjects under the jus soli rule. Although, like other non-
Anglicans, these Jewish subjects were excluded from public life and the
universities. . .” “Subjects, Citizens, Aliens And Others”, by Ann Dummett and
Andrew Nicol, Fred B Rothman & Co (1990), pg. 77. (App. Pg. 135.)
The term, natural-born subject, covered a multiplicity of subjection devices, including;
jus soli, jus sanguinis, and all forms of naturalization. Being a natural-born subject,
however, most certainly did not confer upon the subjects an equal civic status, whereas
the natural-born citizen clause infers the pinnacle of civic status.
From the first naturalization act in 1790, and ever since, the United States has required a
federal statute to establish citizenship for persons born abroad, even those born to citizen
21
parents. This leads to an implication, that, with regard to general citizenship, prior to the
14
th
Amendment, birth on U.S. soil was necessary for birthright citizenship. This was
later absolutely established by the 14
th
Amendment. Whether, prior to the Amendment,
U.S. citizenship required citizen parentage as well as birth on the soil, remains an open
issue, unless Justice Gray’s opinion in Wong Kim Ark, that the jus soli rule was in force
before, during, and after July 4, 1776, is precedent on that issue, and not dicta.
Since (as will be discussed in great detail below) Justice Gray’s opinion from Wong Kim
Ark contains numerous objective errors with regard to Supreme Court decisions on
citizenship prior to the 14
th
Amendment, the decision in Wong Kim Ark ought to be
strictly confined to the holding, and should, therefore, only be applied to citizenship
issues which involve the 14
th
Amendment.
Regardless, even if jus soli were enough to establish the general political status of
citizenship, the issue of whether a citizen has the specific civic status necessary to be
considered a natural-born citizen, requires a completely separate construction and
definition of the term “natural-born”. Since we know birth in the country was necessary
for general citizenship, and since Presidential eligibility requires, by the very words of
the Constitution, something more than being a citizen, it is perfectly logical that the true
intention of the natural-born citizen clause was to require both, jus soli, and jus sanguinis,
so that the President/Commander In Chief, would not have been born with divided
loyalties. Requiring the President to have a singular allegiance to the United States avoids
complications with regard to treaties, and treason, both of which relate to our
relationships with other countries, such issues always having been determined with
respect for the Law of Nations.
C. The Law Of Nations.
Now that we have closely examined the English common law for guidance, it is proper to
consult the Law of Nations, which is specifically referred to the U.S. Constitution:
“The Congress shall have power…To define and punish Piracies and Felonies
committed on the high Seas, and Offenses against the Law of Nations;” U.S.
22
Constitution, Art. I, Sec. 8, Cl. 10.
Lord Chancellor Ellesmere’s opinion in Calvin’s Case determined that the Law of
Nations was also adopted as part of the English common law.
“And the end they have in this question what is the common law is to shake and
weaken the ground and principles of all government and in this particular
question of the law of England to overthrow that law whereby this realme hath
many hundred yeares beene governed in all honour and happinesse: or at least to
cast an aspersion upon it, as though it were weake and uncertaine. I will therefore
declare mine opinion in this point plainely and confidently, as I thinke in my
conscience, and as I finde to be sufficiently warranted by ancient writers, and
good authorities voide of all exception.
“The common law of England is grounded upon the law of God and extendes
itselfe to the original law of nature and the universal law of nations.” Calvin’s
Case, Lord Chancellor Ellesmere, Exchequer Chamber, STATE TRIALS, 6
James I., 1608 – The Case of the Postnati, pgs. 669-670. (App. Pg. 142.)
The Law of Nations is, in all actuality, a universal common law of international
jurisprudence. That the framers of the Constitution were influenced by the Law of
Nations cannot be disputed. It has always been considered, by the Supreme Court, as
relevant to international legal disputes in American tribunals.
In 1775, Benjamin Franklin wrote a gracious note to Charles Dumas, for “the kind
present you have made us of your edition of Vattel. It came to us in good season, when
the circumstances of a rising state make it necessary frequently to consult the law of
nations.” Franklin also stated that Vattel’s treatise was, “continually in the hands of the
members of our Congress.” (From a letter, Benjamin Franklin to Charles Dumas, Dec.
19, 1775.)
From the 1775 edition of Vattel’s text, The Law of Nations or Principles of the Law of
Nature:
“Les citoyen font les member de la societe civille: lies a cette societe par certain
23
devoirs, & foumis a fon autorite, ils participent avec egalite a fes avantages. Les
naturels, ou indigenes, font ceux, qui font nes dans le pays, de parens citoyens.”
“Le Droit Des Gens ou Principes De La Loi Naturelle”, E. de Vattel, (Amsterdam,
1775), § 212, pg. 115. (App. Pg. 157.)
Vattel’s treatise was first published in 1758, in French. The first edition contains the
exact same passage as the 1775 edition give to Franklin by Dumas. In 1759, the first
English edition was published in London, translated as follows:
“The citizens are the members of the civil society : bound to this society by
certain duties, and subject to its authority, they equally participate in its
advantages. The natives, or indigenes, are those born in the country of parents
who are citizens.” “The Law of Nations or Principles of the Law of Nature”, E. de
Vattell, (London, 1759), § 212, pg. 92. (App. Pg. 159.)
“Les naturels, ou indigenes”, was not accurately translated. The proper translation of
“indigenes” is “natives”. The 1759 London edition makes the mistake of repeating the
same word twice, once in English and once in French; “natives or indigenes” means
“natives or natives”.
The influence of the U.S. Constitution may have played a part in correcting the error,
since, in the 1797 London edition, and thereafter, the French passage was correctly
translated as follows:
“The citizens are the members of the civil society : bound to this society by
certain duties, and subject to its authority, they equally participate in its
advantages. The natives, or natural-born citizens, are those born in the country
of parents who are citizens.” (Emphasis added.) “The Law of Nations or
Principles of the Law of Nature”, E. de Vattell, (London, 1797), § 212, pg. 101.
(App. Pg. 161.)
The passage was first introduced to American Jurisprudence in the case of The Venus, 12
U.S. 253 (1813):
“The whole system of decisions applicable to this subject, rests on the law of
nations as its base. It is, therefore, of some importance to enquire how far the
24
writers on that law consider the subjects of one power residing within the territory
of another, as retaining their original character, or partaking of the character of
the nation in which they reside.
“Vattel, who, though not very full to this point, is more explicit and more
satisfactory on it than any other whose work has fallen into my hands, says, 'the
citizens are the members of the civil society; bound to this society by certain duties,
and subject to its authority, they equally participate in its advantages. The natives,
or indigenes, are those born in the country, of parents who are citizens.” Id. 289.
Vattel first introduces the citizens as the general members of civil society. He then
identifies a specific subset of citizens, the “natives ou naturels”, who are born in the
country of parents who are citizens.
Since general citizenship is, of course, determined by the will of each separate nation, it
is not suggested that the Law of Nations need be consulted in determining whether a
nation adopts jus soli, or jus sanguinis. However, when we consider the advantages of
having a chief executive who was not born owing allegiance to an alien power, it
becomes obvious that a requirement of jus soli, and jus sanguinis, as to the chief
executive, would avoid all possible conflicts of allegiance, with regard to the chief
executive’s power to execute and enforce treaties, and to declare and conduct war.
If the chief executive is confronted with the possibility of war with the foreign nation to
which he was born owing a second allegiance, he might have to choose treason against
one of the two nations. This would be a very unnatural situation. Similar conflicts of
interest are possible with regard to the negotiation and execution of treaties. Requiring a
singular allegiance in the chief executive avoids all possible conflicts of interest, and
simply makes common sense.
John Jay, the first Chief Justice of the Supreme Court, is credited with being the first to
suggest that the Commander In Chief be a natural-born citizen. In a letter to George
Washington, dated July 25, 1787, Jay wrote:
"Permit me to hint, whether it would be wise and seasonable to provide a strong
check to the admission of Foreigners into the administration of our national
25
Government; and to declare expressly that the Commander in Chief of the
American army shall not be given to nor devolve on, any but a natural born
Citizen. " (App. Pg. 162.)
Jay underlined “born” in his own hand. More interesting, perhaps, is that the letter is
concerned with the capacity of Commander In Chief. This provides clarity that the
natural-born citizen clause is a national security measure. Jay appears to have been
uniquely focused upon a fear that the military might be infiltrated by foreign powers.
Considering that he called for, “a strong check to the admission of foreigners into the
administration of our national government”, it makes sense that the natural-born citizen
clause was designed to guarantee a singular allegiance to this nation. Anything less would
not be a very strong check at all.
If the natural-born citizen clause was intended as a unification of jus soli, and jus
sanguinis, we would expect to have at least one Supreme Court decision in our national
judicial history, which confirms that the natural-born citizen clause does, in fact, require a
unified allegiance , via birth in the country to citizen parents. Minor v. Happersett is that
case.
D. Minor v. Happersett, 88 U.S. 162 (1874).
The only Supreme Court decision which has directly construed the natural-born citizen
clause from Article 2, Section 1, is Minor v. Happersett, 88 U.S. 162 (1874). In that case,
Virginia Minor petitioned the court to determine whether women were equal citizens to
men, and further argued that if she was a citizen, her right to vote was protected by the
14th Amendment, which she also claimed made her a citizen. The Court's unanimous
decision declined to construe the 14th Amendment's citizenship clause. Instead, the Court
held that Minor was a citizen prior to the adoption of the 14th Amendment.
The Court established her citizenship by defining the word "citizen", and then identifying
the class of “natural-born citizens”, to which she belonged. Their holding was that
natural-born citizens were citizens at birth who do not require the 14th Amendment to
establish their membership in the nation. The Court also noted that persons, who were not
eligible to the class of natural-born citizens, might, however, be citizens under the 14th
Amendment:
26
"The Constitution does not, in words, say who shall be natural-born citizens.
Resort must be had elsewhere to ascertain that. At common-law, with the
nomenclature of which the framers of the Constitution were familiar, it was never
doubted that all children born in a country of parents who were its citizens
became themselves, upon their birth, citizens also. These were natives, or natural-
born citizens, as distinguished from aliens or foreigners." Minor v. Happersett, 88
U.S. 162, 168.
There are two classes of persons discussed in the above quotation. Those born in the
country of citizen parents were labeled by the Court as “natives, or natural-born citizens”,
but these were also further identified as being “distinguished from aliens or foreigners”.
The distinction is crucial.
On one side are those who have no citizenship other than that of the United States, as
distinguished from those on the polar opposite side, who have absolutely no claim to
citizenship in the United States; “These were natives, or natural-born citizens, as
distinguished from aliens or foreigners.” Id. Those who fall in between these two
extremes make up a third class of persons whose citizenship status, the Court noted, was
subject to doubt:
“Some authorities go further and include as citizens children born within the
jurisdiction without reference to the citizenship of the parents. As to this class
there have been doubts, but never as to the first.” Id. (Emphasis added.)
Had this third class been contemplated as having any claim to natural-born citizen status,
the distinction employed by the court would not make sense. The distinction appears to
have been created to more specifically identify the class of persons who were natural-
born citizens under Article 2, Section 1, since the two classes discussed are in direct
opposition to each other.
For example, a person born in the U.S., to a British father and U.S. citizen mother, would
be considered a British subject. Whether this child would be, at his birth, a citizen under
the 14th amendment, was left undecided by the Supreme Court in Minor. But let’s
assume that the child is a U.S. citizen. Where does that child fit into the distinction
offered by the Court in Minor? The child is not on either polar extreme, since the child
27
was not exclusively a U.S. citizen at birth, nor was the child exclusively a British subject
at birth. He would not fit into the distinction.
By choosing two extremes – those who, at their birth, are nothing but U.S. citizens – “as
distinguished from aliens or foreigners” – those who, at their birth, have absolutely no
claim to U.S. citizenship – the Supreme Court in Minor provided extra criteria to properly
discern their holding, so that nothing has been left open as to the Court’s identification of
the specific natural-born citizen class. This is made even more clear by the other federal
citizenship holding from Minor v. Happersett:
“The very idea of a political community, such as a nation is, implies an
association of persons for the promotion of their general welfare. Each one of the
persons associated becomes a member of the nation formed by the association…
For convenience it has been found necessary to give a name to this membership.
The object is to designate by a title the person and the relation he bears to the
nation. For this purpose the words ‘subject,’ ‘inhabitant,’ and ‘citizen’ have been
used, and the choice between them is sometimes made to depend upon the form of
the government. Citizen is now more commonly employed, however, and as it has
been considered better suited to the description of one living under a republican
government, it was adopted by nearly all of the States upon their separation from
Great Britain, and was afterwards adopted in the Articles of Confederation and in
the Constitution of the United States. When used in this sense it is understood as
conveying the idea of membership of a nation, and nothing more.” Minor v.
Happersett, 88 U.S. 162, 165-166 (1874). (Emphasis added.)
Therefore, when the Court uses the words, “citizen” or “citizenship”, no other meaning
may be implied other than, “membership of a nation”, whereas, the natural-born citizen
clause only pertains to a requirement for holding public office. Those who are natural-
born meet that qualification, but all who are citizens, natural-born, naturalized abroad,
naturalized here, at birth, or later in life, are members of the nation. The word “citizen”,
according to the Supreme Court in Minor, refers to membership of a nation, and nothing
more.
The following statement only left open the issue of whether persons born here of aliens
28
were citizens. The Court did not leave open the class of natural-born citizens:
“Some authorities go further and include as citizens children born within the
jurisdiction without reference to the citizenship of their parents. As to this class
there have been doubts, but never as to the first. For the purposes of this case it is
not necessary to solve these doubts. It is sufficient for everything we have now to
consider that all children born of citizen parents within the jurisdiction are
themselves citizens.” Id. at 167-168. (Emphasis added.)
When the Court stated that, according to the nomenclature of the common law, it was
never doubted that natives were citizens, it clearly drew a distinction between the general
class of all members of the nation (citizens), and the specific subset of that class, the
“natives, or natural-born citizens”. When the Court returned to the word, doubts, it was
related only to the general issue of membership in the nation, and nothing more.
Reading the above quoted passage in light of the definition of “citizen” from pg. 166 of
Minor’s unanimous opinion, it becomes evident that what is referred to here is
membership in our nation, and nothing more. Any attempt to insert the words – “natural-
born” – into this statement would be in direct opposition to the Court’s very holding of
the case.
More light may be shed on the issue by examining the opinion of the Supreme Court in
The Slaughter-House Cases, decided two years earlier than Minor, when the Court was
composed of 8 of the 9 Justices involved with Minor’s unanimous opinion. The Court
issued the following statement concerning the meaning of “subject to the jurisdiction
thereof” in the 14
th
Amendment:
“The phrase, 'subject to its jurisdiction' was intended to exclude from its
operation children of ministers, consuls, and citizens or subjects of foreign States
born within the United States.” The Slaughter-House Cases, 83 U.S. 36, 73
(1872).
Only two years prior to Minor, the Court was of the opinion that persons born in the
country to alien parents were not even citizens, never mind natural-born. Then, two years
later, in Minor, the Court identified the specific class of natural-born citizens as those
born in the country of citizen parents, but left open the issue of who was eligible to the
29
general class of citizens.
While the Court in Minor v. Happersett humbly recognized authorities that ran counter to
their dicta from the Slaughter-House Cases, they were firm in their identification of the
natural-born citizen class. Since Virginia Minor was a member of that specific class, she
was automatically a member of the general class, and therefore, the 14
th
Amendment was
held to be unnecessary to determine the citizenship of anyone eligible to the specific
natural-born class.
When the Supreme Court eventually revisited the 14
th
Amendment citizenship clause in
Wong Kim Ark, it could not include the petitioner in the specific class, so the Court was
required to invoke the 14
th
Amendment to establish the petitioner’s membership in the
general class as a citizen. Had Wong Kim Ark been a natural-born citizen, the Court
would not have been required to reach for the 14
th
Amendment, just as it didn’t reach it in
Minor v. Happersett.
Precedent v. Dicta.
In 1996, the US Supreme Court’s majority opinion by Justice Breyer in Ogilvie Et Al.,
Minors v.United States, 519 U.S. 79 (1996), stated that when the Court discusses a
certain reason as an independent ground in support of their decision, then that reason is
not dictum:
“Although we gave other reasons for our holding in Schleier as well, we explicitly
labeled this reason an ‘independent’ ground in support of our decision, id., at
334. We cannot accept petitioners’ claim that it was simply a dictum.” Id. 84.
The Minor Court’s construction of the natural-born citizen clause was the independent
ground by which the Court avoided construing the 14th Amendment’s citizenship clause.
Therefore, such construction is precedent, not dicta, despite Presidential eligibility not
being an issue in that case. The Court determined it was necessary to define the class of
natural-born citizens, and the definition remains current legal precedent.
The Minor Court’s unanimous opinion has never been overruled or even questioned. In
fact, the very passage defining the natural-born citizen class was re-stated in Justice
Gray’s opinion from Wong Kim Ark:
30
“That neither Mr. Justice Miller, nor any of the justices who took part in the
decision of the Slaughter House Cases, understood the court to be committed to
the view that all children born in the United States of citizens or subjects of
foreign states were excluded from the operation of the first sentence of the
fourteenth amendment, is manifest from a unanimous judgment of the court,
delivered but two years later, while all those judges but Chief Justice Chase were
still on the bench, in which Chief Justice Waite said. . .’At common law, with the
nomenclature of which the framers of the constitution were familiar, it was never
doubted that all children born in a country, of parents who were its citizens,
became themselves, upon their birth, citizens also. These were natives or natural-
born citizens, as distinguished from aliens or foreigners. Some authorities go
further, and include as citizens children born within the jurisdiction, without
reference to the citizenship of their parents. As to this class there have been
doubts, but never as to the first. For the purposes of this case, it is not necessary
to solve these doubts. It is sufficient, for everything we have now to consider, that
all children, born of citizen parents within the jurisdiction, are themselves
citizens.' “ U.S. v Wong Kim Ark, 169 U.S. 649, 679-680.
In this passage, Justice Gray has cited to the unanimous opinion from Minor v.
Happersett to counter dicta from The Slaughter-House Cases, which excluded children of
aliens from the general citizenship class, while, at the same time, the Minor Court’s
identification of the specific natural-born citizen class was not questioned at all. In fact, it
appears to have been cited as an example of precedent, as contrasted with the dicta from
The Slaughter-House Cases. Surely, if the majority from Wong Kim Ark had taken issue
with the Minor Court’s natural-born citizen definition, this was the place for them to
speak up and be heard. Since no issues were raised, it’s fair to conclude that the Court
approved.
While it is true that the dissent in Wong Kim Ark appeared to believe the majority
holding would have made Ark eligible to be President (Id. 715), the majority having cited
the exact definition of natural-born citizen from Minor v. Happersett may have been
intended to lay the dissent’s fears to rest.
Directly after quoting the Minor Court's definition of natural-born citizen, Justice Gray
noted that the holding in Minor incorporated two citizen parents:
31
"The decision in that case was that a woman born of citizen parents within the
United States was a citizen of the United States, although not entitled to vote, the
right to the elective franchise not being essential to citizenship." U.S. v. Wong
Kim Ark, 169 U.S. 649, 680.
Had the Court in Wong Kim Ark identified the petitioner as a natural-born citizen, there
would have been no need to construe the 14th Amendment’s citizenship clause, just as it
wasn’t necessary to construe it to determine Virginia Minor’s citizenship. But Wong Kim
Ark was not natural-born, and, therefore, the Court was required to construe the 14th
Amendment to determine his citizenship.
E. Citizenship Cases Prior To Adoption of the 14
th
Amendment.
In 1898, the Supreme Court, in U.S. v. Wong Kim Ark, construed the 14
th
Amendment’s
citizenship clause, and determined that all persons born in the U.S. to parents who were
domiciled in the country, were, upon their birth, citizens. While Justice Gray’s majority
opinion indicates that the holding is restricted to citizenship issues after the adoption of
the 14
th
Amendment, the opinion discusses many important citizenship decisions leading
up to the Amendment.
Unfortunately, Justice Gray made some obvious mistakes with regard to these cases, and
other points of authority. As such, the decision of the Court ought to be restricted to its
holding. And since we are searching for the framers’ intent with regard to the natural-
born citizen clause, the earliest decisions of the Supreme Court, though superseded by the
14
th
Amendment, and the accompanying general citizenship holding in Wong Kim Ark,
remain relevant to this discussion for their probatory value as to the specific issue now
before this Court.
i.) Inglis v. Trustees Of Sailor’s of Snug Harbor, 28 U.S. 99 (1830).
In Wong Kim Ark, Justice Gray discussed this case as follows:
In Inglis v. Sailors' Snug Harbor (1830) 3 Pet. 99, in which the plaintiff was born
in the city of New York, about the time of the Declaration of Independence, the
justices of this court (while differing in opinion upon other points) all agreed that
the law of England as to citizenship by birth was the law of the English colonies
32
in America. Mr. Justice Thompson, speaking for the majority of the court, said: 'It
is universally admitted, both in the English courts and in those of our own
country, that all persons born within the colonies of North America, while subject
to the crown of Great Britain, were natural-born British subjects.' Id. 120. Mr.
Justice Johnson said: 'He was entitled to inherit as a citizen born of the state of
New York.' Id. 136. Mr. Justice Story stated the reasons upon this point more at
large, referring to Calvin's Case, Blackstone's Commentaries, and Doe v. Jones,
above cited, and saying: 'Allegiance is nothing more than the tie or duty of
obedience of a subject to the sovereign under whose protection he is; and
allegiance by birth is that which arises from being born within the dominions and
under the protection of a particular sovereign. Two things usually concur to
create citizenship: First, birth locally within the dominions of the sovereign; and,
secondly, birth within the protection and obedience, or, in other words, within the
ligeance, of the sovereign. That is, the party must be born within a place where
the sovereign is at the time in full possession and exercise of his power, and the
party must also at his birth derive protection from, and consequently owe
obedience or allegiance to, the sovereign, as such, de facto...' Id. 155… 'Nothing
is better settled at the common law than the doctrine that the children, even of
aliens, born in a country, while the parents are resident there under the
protection of the government, and owing a temporary allegiance thereto, are
subjects by birth.' Id. 164.” U.S. v. Wong Kim Ark, 169 U.S. 649, 659, 660.
All of the above is well and good as a restatement of the English common law principles
of allegiance, but Justice Gray completely ignored the actual holding of the majority
opinion of the Court in the Inglis case. Instead, he focused on the minority concurring
opinions of Justice Johnson, and Justice Story, which only served to mislead from the fact
that the holding in this case is exactly opposite to the principles contended for by Justice
Gray.
The issue in Inglis was whether the plaintiff could inherit land in the United States, and
the question turned on whether he was to be considered a British subject, or an American
citizen. If British, he could not inherit, but if he was an American, he could. The date of
his birth was uncertain, so the court was required to analyze the facts based upon three
different birth date scenarios.
33
The Court held that if the plaintiff was born in New York, prior to July 4, 1776, then he
was an alien, and could not inherit.
On July 4
th
, 1776, the Colonial army officially took possession of New York, which was,
therefore, United States land. But the British managed to take back possession of New
York on September 15, 1776. And the Court held that if the plaintiff was born on, or after
September 15
th
, he was also a British alien and could not inherit.
But if the plaintiff was born between July 4
th
, and September 15
th
, he was born in the
United States. And this was the only issue in the case that was directly relevant to the
Court’s decision in Wong Kim Ark. If, as Justice Gray contended, the general rule in this
country had always been that persons born here were recognized as citizens, regardless of
the citizenship of their parents, then we would expect that the Supreme Court, in the
Inglis case, would have held that the plaintiff – if born when New York was in possession
of the colonial forces - was a United States citizen at birth. And this is certainly the
impression given by Justice Gray’s discussion of the case. But that impression is proved
false by Justice Thompson’s majority opinion of the Court:
“1. If the demandant was born before the 4th of July 1776, he was born a British
subject; and no subsequent act on his part, or on the part of the state of New
York, has occurred to change that character; he of course continued an alien, and
disabled from taking the land in question by inheritance.
“2. If born after the 4th of July 1776, and before the 15th of September of the
same year, when the British took possession of New York, his infancy
incapacitated him from making any election for himself, and his election and
character followed that of his father, subject to the right of disaffirmance in a
reasonable time after the termination of his minority; which never having been
done, he remains a British subject, and disabled from inheriting the land in
question.
“3. If born after the British took possession of New York, and before the
evacuation on the 25th of November 1783, he was, under the circumstances stated
in the case, born a British subject, under the protection of the British government,
and not under that of the state of New York, and of course owing no allegiance to
the state of New York.” (Emphasis added.) Inglis v. Trustees Of Sailor’s of Snug
Harbor, 28 U.S. 99, 126 (1830).
The holding makes clear that, even if born between July 4, 1776, and September 15,
1776, when New York was United States soil, Inglis took the national character of his
British father, from birth, and throughout his minority. The Court also stated that the
34
child had a right of disaffirmance after reaching majority. But the opinion does not
recognize a dual allegiance at birth. It clearly states that the child was incapable of
making an election, and therefore, until he was so capable, he would remain British,
having taken his father’s national character at birth.
By relying so heavily on the minority concurring opinions, rather than the majority
holding of the case, Justice Gray made it appear as if the Inglis Court had held that the
plaintiff was a U.S. citizen at birth, when, in reality, under all three scenarios, it was held
that the plaintiff was born a British subject. Rather than supporting the holding in Wong
Kim Ark, the majority opinion in Inglis v. Trustees of Sailor’s of Snug Harbor goes
directly against it.
Justice Gray’s faulty analysis was further compounded in Shanks v. Dupont:
ii.) Shanks v. Dupont, 28 U.S. 242 (1830).
In Wong Kim Ark, Justice Gray discussed this case as follows:
“In Shanks v. Dupont, 3 Pet. 242, decided (as appears by the records of this
court) on the same day as the last case, it was held that a woman born in South
Carolina before the Declaration of Independence, married to an English officer in
Charleston during its occupation by the British forces in the Revolutionary War,
and accompanying her husband on his return to England, and there remaining
until her death, was a British subject, within the meaning of the treaty of peace of
1783, so that her title to land in South Carolina, by descent cast before that
treaty, was protected thereby. It was of such a case that Mr. Justice Story,
delivering the opinion of the court, said: 'The incapacities of femes covert,
provided by the common law, apply to their civil rights, and are for their
protection and interest. But they do not reach their political rights, nor prevent
their acquiring or losing a national character. Those political rights do not stand
upon the mere doctrines of municipal law, applicable to ordinary transactions,
but stand upon the more general principles of the law of nations.' Id. 248. This
last sentence was relied on by the counsel for the United States, as showing that
the question whether a person is a citizen of a particular country is to be
determined, not by the law of that country, but by the principles of international
law. But Mr. Justice Story certainly did not mean to suggest that, independently of
treaty, there was any principle of international law which could defeat the
35
operation of the established rule of citizenship by birth within the United States:
for he referred (page 245) to the contemporaneous opinions in Inglis v. Sailors'
Snug Harbor, above cited, in which this rule had been distinctly recognized, and
in which he had said (page 162) that 'each government had a right to decide for
itself who should be admitted or deemed citizens.' U.S. v. Wong Kim Ark, 169
U.S. 649, 660-661.
In point of fact, there was never an established rule of citizenship by simple birth in the
United States. What was “distinctly recognized” in the Inglis case was the general
English common law rule, that birth within the King’s realms, even to alien parents,
made one a natural-born subject. But this general common law rule was definitely not
“distinctly recognized” by the Court in Inglis as having been adopted by the United
States, since it was held that the child followed the condition of his father at birth, and
throughout his minority.
Furthermore, in Shanks v. Dupont, Justice Gray again ignored the holding of the majority
opinion of the Court, which directly opposed his analysis. The issue in Shanks was
similar to the Inglis case, turning on whether Ann Scott was British or American. Justice
Story delivered the opinion of the Court:
Ann Scott was born in South Carolina, before the American revolution; and her
father adhered to the American cause, and remained and was at his death a
citizen of South Carolina. There is no dispute that his daughter Ann, at the time of
the revolution, and afterwards, remained in South Carolina until December 1782.
Whether she was of age during this time does not appear. If she was, then her
birth and residence might be deemed to constitute her by election a citizen of
South Carolina. If she was not of age, then she might well be deemed under the
circumstances of this case to hold the citizenship of her father; for children born
in a country, continuing while under age in the family of the father, partake of
his national character, as a citizen of that country. Shanks v. Dupont, 28 U.S.
242, 245 (1830).
Justice Gray’s opinion from Wong Kim Ark failed to quote this passage, where the
Supreme Court – on the same day they decided Inglis - held again, that children, at birth,
and throughout their minority, take the national character of the father.
36
The holding in Shanks further calls into question Justice Gray’s analysis in Wong Kim
Ark. The tandem cases of Shanks and Inglis are consistent in their reflection of early
American citizenship law, which did not uniformly follow the English common law rule
of jus soli.
iii.) Levy v. McCartee, 31 U.S. 102, 109 (1832)
“Again, in Levy v. McCartee (1832) 6 Pet. 102, 112, 113, 115, which concerned a
descent cast since the American Revolution, in the state of New York, where the
statute of 11 & 12 Wm. III. had been repealed, this court, speaking by Mr. Justice
Story, held that the case must rest for its decision exclusively upon the principles
of the common law, and treated it as unquestionable that by that law a child born
in England of alien parents was a natural-born subject; quoting the statement of
Lord Coke in Co. Litt. 8a, that 'if an alien cometh into England, and hath issue
two sons, these two sons are indigenae, subjects born, because they are born
within the realm'; and saying that such a child 'was a native-born subject,
according to the principles of the common law, stated by this court in McCreery
v. Somerville, 9 Wheat. 354.'” U.S. v. Wong Kim Ark, 169 U.S. 649, 662.
There is absolutely nothing in Levy v. McCartee that concerns the citizenship status of a
relevant party. The decision turned upon statutes in New York that had incorporated older
English statutes. The issues strictly concerned New York law. And the case has
absolutely no bearing on the issue of federal citizenship. It provides no support at all for
the holding in U.S. v. Wong Kim Ark.
iv.) McCreery v. Somerville, 22 U.S. 354 (1824).
One of the foundational building blocks for Justice Gray’s opinion in U.S. v. Wong Kim
Ark is the case, McCreery v. Somerville, 22 U.S. 354 (1824), to which Justice Gray made
a flawed assumption based upon his failure to acknowledge a judicially recognized
misquote. Justice Gray failed to inform his opinion in Wong Kim Ark with the fact that
the U.S Supreme Court had questioned the McCreery opinion in 1881, just prior to
Justice Gray having joined the Court.
In Sullivan v.Burnett, 105 U.S. 334 (1881), the Court stated:
“This view is controverted by the plaintiffs on the authority of McCreery’s Lessee
37
v. Somerville, 9 Wheat. 354, where this Court had occasion to determine the
meaning of the statute of 11 & 12 William III. c. 6,…We remark in reference to
that case that the English statute is not accurately quoted in the opinion of the
Court, as an examination of 10 British Stat. at Large 319(Pickering’s Ed.) will
show. but without deciding that the words omitted ought to have produced a
judgment different from that rendered, we are of opinion that the present case is
not governed by McCreery’s Lessee v. Somerville.” Sullivan v. Burnett, 105 U.S.
334, 340-341. (Emphasis added.)
Justice Story’s misquote would not have changed the outcome of the case. However, the
correct citation to the statute would have prevented the following assumption made by
Justice Gray in Wong Kim Ark:
“In McCreery v. Somerville (1824) 9 Wheat. 354, which concerned the title to
land in the state of Maryland, it was assumed that children born in that state of
an alien who was still living, and who had not been naturalized, were ‘native-
born citizens of the United States’; and without such assumption the case would
not have presented the question decided by the court, which, as stated by Mr.
Justice Story in delivering the opinion, was ‘whether the statute applies to the
case of a living alien ancestor, so as to create a title by heirship, where none
would exist by the common law, if the ancestor were a natural-born subject.’ Id.
356.” U.S. v. Wong Kim Ark, 169 U.S. 649, 661. (Emphasis added.)
We have, in the passage above, a very misleading quote. Justice Gray cites to pg. 356 of
McCreery at the end of the passage wherein he placed quotes around ‘native-born
citizens of the United States’. But no such quote appears on pg. 356 of the McCreery
opinion. In fact, the Court’s opinion in McCreery nowhere states that the plaintiff was a
U.S. citizen, native-born or otherwise. The headnote and facts agreed upon by the parties
call the plaintiff a citizen, but these are not part of the Court’s opinion, and are not law.
Since the plaintiff’s ancestor was alive, the Court held that the plaintiff could not inherit
from him. And this would have been the holding regardless of the plaintiff’s citizenship
status. Having determined that the plaintiff couldn’t inherit from that particular ancestor,
the Court never reached the direct issue of her citizenship. And a thorough review of the
facts and the British statute construed in McCreery reveals that the Court, contrary to
Justice Gray’s unfounded assumption, would not have been required to determine she
was a native-born citizen of the U.S. in order for her to inherit.
Gray’s assumption is culled from this passage in McCreery:
“The only point, therefore, is whether the statute applies to the case of a living
38
alien ancestor, so as to create a title by heirship where none would exist by the
common law, if the ancestor were a natural born subject.” McCreery v.
Somverville, 22 U.S. 354, 355-356.
The Court’s use of “the only point” is the basis for Gray’s assumption. The title to the
statute in question is:
“An act to enable his Majesty’s natural-born subjects to inherit the estate of their
ancestors, either lineal or collateral, notwithstanding their father or mother were
aliens.” Id. 356.
With regard to the title, Justice Story also stated, “The title is not unimportant, and
manifests an intention merely to remove the disability of alienage.” Justice Gray’s
analysis assumed the title to the act meant that it pertained only to “natural-born
subjects”. And if that were true, then Gray’s assumption would be fair. This is because
“the only point” stated in McCreery was whether the plaintiff could inherit despite the
ancestor being alive. If the plaintiff’s citizenship were in question, then there would have
been more than one point to decide.
Therefore, if the statute applied only to natural-born subjects, the Court’s opinion in
McCreery could be said to have recognized the plaintiff as a native-born citizen of the
U.S., despite her being born here to an alien father. But, in true actuality, the statute
specifically refers to natural-born subjects as well as “subjects within any of the King’s
realms or dominions”. In the United Kingdom, “subjects within any of the King’s realms
or dominions”, pertains to resident aliens. These are persons permanently domiciled
within the UK who are neither natural-born nor naturalized.
A “natural-born subject” is a subject wherever he goes in the world, but a resident alien is
only a subject of the United Kingdom when he is actually in the King’s realms.
Therefore, Gray’s assumption is misplaced, since the plaintiff in McCreery was within
the statute regardless of whether she was considered by the Court to be a U.S. citizen or a
resident alien. Since the Court’s opinion doesn’t mention the citizenship status of the
plaintiff, it should not have been assumed by Justice Gray that the McCreery Court had
assumed the plaintiff was a U.S. citizen rather than a resident alien.
Justice Story’s reference in McCreery to “the only point”, while being correct, does not
establish that the Court assumed the plaintiff to be a native-born citizen. Regardless, if
the Court in McCreery did make the assumption attributed to it by Justice Gray, that
assumption was unfounded according to the relevant statute, which, as the Supreme Court
39
noted in Sullivan v. Burnett, had been misquoted by Justice Story.
The Supreme Court’s opinions in McCreery, Shanks, Inglis, and Levy, provide no
genuine support for Justice Gray’s opinion in Wong Kim Ark. In fact, prior to Wong Kim
Ark, there is not one U.S. Supreme Court decision that establishes the English common
law rule of jus soli citizenship. Justice Gray simply overruled every prior decision of the
Supreme Court that ran against his analysis, while making it appear as if those cases
supported his argument.
F. The 1790 Naturalization Act.
In 1790, the first naturalization act was passed by Congress. It contained a provision
which deemed all persons born abroad of United States citizens to be "natural born
citizens", provided that the father had, at some time, resided in the United States. This
was the only congressional statute that attempted to infringe upon Article 2, Section 1's
authority. There is no provision in the U.S. Constitution that grants Congress any power,
as to citizenship, beyond their exclusive control over naturalization. Accordingly, the
words "natural born" were repealed in the 1795 naturalization act. Regardless, this, the
one and only time that Congress passed legislation using the words “natural born citizen”,
was directly related to the citizenship of the parents.
Additionally, the 1790 act, as well as the naturalization acts of 1795, and 1802,
specifically conferred naturalization at birth. Therefore, while it is true that citizenship
may only be gained by birth or naturalization, one may certainly be naturalized at birth.
And if one requires naturalization, then citizenship is not natural-born. Rather, it is
completely dependent upon an act of Congress.
E. Every President Other Than Chester Arthur Was Born In The U.S. Of Citizen
Parents, Or Was Eligible Under The Grandfather Clause In Article 2, Section 1.
Chester Arthur's father, William ,did not naturalize until 1843, fourteen years after
Chester was born. (Naturalization certificate for William Arthur, 1843; Library of
Congress, Chester Arthur Papers.) (App. Pg. 163.) Therefore, Chester Arthur was, at
birth, a British subject.
On Nov 3, 1884, President Arthur's Fourth Annual Message to Congress included the
40
following cryptic statement:
"An uniform rule of naturalization such as the Constitution contemplates should,
among other things, clearly define the status of persons born within the United
States subject to a foreign power (section 1992) and of minor children of fathers
who have declared their intention to become citizens but have failed to perfect
their naturalization...A just and uniform law in this respect would strengthen the
hands of the Government in protecting its citizens abroad and would pave the way
for the conclusion of treaties of naturalization with foreign countries." (Emphasis
added.) President Chester Arthur, Fourth Annual Message to Congress, Dec. 1,
1894., pg. 8. (App. Pg. 173. )
The statement is rich with context. President Arthur indicated that persons born in the
U.S., subject to a foreign power, required naturalization. Additionally, he calls for the
status of such persons to be clarified. Which class of persons subject to a foreign power
does he refer to? Certainly not ambassadors and ministers, since their status has always
been clear. And only four weeks earlier, in Nov. 1884, the status of Indians was declared
in Elk v. Wilkins, so he's not making reference to them. That leaves the third class of
persons discussed on page 73 of The Slaughter-House Cases, "citizens or subjects of
foreign States born within the United States".
Since Justice Gray cited to that exact page as precedent, just four weeks earlier, in the
Supreme Court's opinion in Elk v. Wilkins, President Arthur, having been born to an alien
father, had good reason to be alarmed. Justice Gray, at that time (Nov. 1884), certainly
appeared to have adopted the opinion stated in the Slaughter-House Cases, that children
of aliens, born in the country, were not subject to the jurisdiction of the United States:
"The main object of the opening sentence of the fourteenth amendment was to
settle the question, upon which there had been a difference of opinion throughout
the country and in this court . . . and to put it beyond doubt that all persons . . .
born or naturalized in the United States, and owing no allegiance to any alien
power, should be citizens of the United States and of the state in which they
reside. The Slaughter-House Cases, 16 Wall. 36, 73;” Elk v. Wilkins, 112 U.S.
94, 101 (1884). (Emphasis added.)
41
Note that Justice Gray cited to pg. 73 of The Slaughter-House Cases, and the statement
bears repeating:
"The phrase, 'subject to its jurisdiction' was intended to exclude from its
operation children of ministers, consuls, and citizens or subjects of foreign States
born within the United States." The Slaughter-House Cases, 83 U.S. 36, 73
(1872).
Furthermore, Justice Gray, at this point in time, treated the 14
th
Amendment’s citizenship
clause requirement, “subject to the jurisdiction thereof”, as synonymous with “owing no
allegiance to any alien power”.
Chester Arthur’s Message makes clear he believed that persons born to aliens in the U.S.
required naturalization. And since those who require naturalization are not natural-born,
Chester Arthur’s statement appears to be a veiled admission that he was not eligible to be
President.
Furthermore, that the Civil Rights Act of 1866 was an act to naturalize the children of
aliens born in the U.S. was discussed in Congress during the debates, such discussion
actually having been quoted by Justice Gray in WKA:
"During the debates in the senate in January and February, 1866, upon the civil
rights bill, Mr. Trumbull, the chairman of the committee which reported the bill,
moved to amend the first sentence thereof so as to read: 'All persons born in the
United States, and not subject to any foreign power, are hereby declared to be
citizens of the United States, without distinction of color.' Mr. Cowan, of
Pennsylvania, asked 'whether it will not have the effect of naturalizing the
children of Chinese and Gypsies, born in this country?' Mr. Trumbull
answered, 'Undoubtedly;'...Cong. Globe, 39th Cong. 1st Sess. pt. 1, pp. 498, 573,
574." U.S. v. Wong Kim Ark, 169 U.S. 649, 698.
Justice Gray took no issue with the indication that persons born in the U.S. of alien
parents require naturalization. His approving citation further confirms that the Civil
Rights Act of 1866 was a naturalization act. This is because the only congressional power
to regulate citizenship pertains to naturalization. For example:
42
“The simple power of the national Legislature, is to prescribe a uniform rule of
naturalization, and the exercise of this power exhausts it, so far as respects the
individual." Osborn v. Bank of United States, 9 Wheat. 738, 827. And see Luria v.
United States, 231 U.S. 9, 22 ; United States v. MacIntosh, 283 U.S. 605, 624 ;
Knauer v. United States, 328 U.S. 654, 658 .” Schneider v. Rusk, 377 U.S. 163,
166 (1964).
The “simple power” of Congress over citizenship is strictly limited to naturalization.
Therefore, if native-born persons of alien parents required naturalization prior to the 14
th
Amendment, they can never be considered natural-born citizens, since, whatever the 14th
Amendment may have done to cure their need for naturalization, it did not contain the
phrase "natural-born", and it did not confer any new privileges or immunities:
"The amendment did not add to the privileges and immunities of a citizen. It
simply furnished an additional guaranty for the protection of such as he already
had.” Minor v. Happersett, 88 U.S. 162, 171 (1874).
Therefore, no citizen is eligible to be President who wouldn't have been eligible prior to
the enactment of the 14th Amendment.
President Arthur's Fourth Annual Message was also concerned with children born of
fathers who had failed to complete their naturalization after declaring intent to naturalize.
This point would be moot if such a person, born in the U.S. to an alien father, was
eligible to be President. Chester Arthur made this statement while he was President.
Therefore, the Fourth Annual Message appears to be a cryptic admission his own
ineligibility. If all children born in the U.S. to a domiciled father who had declared his
intention to be a citizen still required naturalization, then Chester Arthur was not a citizen
at the time of his birth, and was not eligible to be President. There is no other way to read
his Fourth Annual Message other than as an implied admission of guilt. If the fact of
Arthur's birth to an alien father had been known, there would have been no need for him
to raise this particular issue with the public in his Fourth Annual Message.
But when we consider the timing of the message, only four weeks after the Supreme
Court’s decision in Elk v. Wilkins was issued, Chester Arthur’s statement becomes even
more relevant and telling.
43
Since Justice Gray was appointed to the Supreme Court by Chester Arthur, it’s incredible
that Gray never mentioned Arthur anywhere in his 55 page opinion from Wong Kim Ark.
If a person born of an alien father was eligible to be President, there would have been no
need for the Supreme Court to decide the fate of Ark’s citizenship. The very issue before
the Court would have been rendered moot if the nation had knowingly embraced a person
born to an alien father as President and Commander In Chief. Either Justice Gray was
ignorant of the fact that Chester Arthur was born to an alien father, or Justice Gray
purposely excluded that fact from the Court’s opinion.
When Charles Evans Hughes was running for President, this very issue was brought to
the attention of the public by former Secretary of State and Ambassador to Italy,
Breckenridge Long, in an article written for the Chicago Legal News in 1916:
"Whether Mr. Hughes is, or is not, a 'natural born' citizen within the meaning of
the Constitution, so as to make him eligible or ineligible, to assume the office of
President, presents an interesting inquiry.
“He was born in this country and is beyond question 'native born.' But is there
not a distinction between 'native born' and 'natural born? At the time he was born
his father and mother were subjects of England. His father had not then been
naturalized. The day after Mr.Hughes was born his father had a right, as an
English subject, to go to the British consul, at New York, and to present his wife
and infant and to claim any assistance he might need from the consul as the
representative of the English government.
“If war had broken out between this government and England this government
would have had a right to interne the father, the mother and the son as subjects of
an enemy power." Chicago Legal News, Vol. 146-148, pp. 220-222. (1916) (App.
Pg. 187.)
The article does not address the issue of Chester Arthur's father having been an alien.
Again, had the nation at large been aware of that fact, such knowledge would have
determined the very issue in question thereby rendering it moot as well.
However, Long does mention Chester Arthur in the article for a separate reason. In a
strange turn of events, Breckenridge Long specifically quotes Chester Arthur's Fourth
44
Annual Message, the very passage discussed above, in support of his questioning the
eligibility of Hughes!
“President Arthur, in his Fourth Annual Message, in 1884, said: ‘Our existing
naturalization laws also need revision. * * * Section 2172, recognizing the
citizenship of the children of naturalized parents, is ambiguous in its terms* * *.
“An uniform rule of naturalization, such as the Constitution contemplates, should,
among other things, clearly define the status of persons born within the United
States subject to a foreign power and of minor children of fathers who have
declared their intention to become citizens* * *.” Id. (App. Pg. 188.)
This ironically establishes that Breckenridge Long, and the nation at large, certainly had
no idea Chester Arthur was British at birth.
F. Assuming Birth In The United States, President Obama's Citizenship Has Not
Been Conclusively Established Under The Constitution.
While analyzing whether a person is eligible to the specific natural-born citizen class, an
analysis as to the source of membership in the general citizen class ought to be helpful.
The 14th Amendment states:
"All persons born or naturalized in the United States, and subject to the
jurisdiction thereof, are citizens of the United States and of the state wherein they
reside."
This clause was directly interpreted by the Supreme Court in U.S. v. Wong Kim Ark,
where the Court held:
"The evident intention, and the necessary effect, of the submission of this case to
the decision of the court upon the facts agreed by the parties, were to present for
determination the single question, stated at the beginning of this opinion, namely,
whether a child born in the United States, of parents of Chinese descent, who, at
the time of his birth, are subjects of the emperor of China, but have a permanent
domicile and residence in the United States, and are there carrying on business,
45
and are not employed in any diplomatic or official capacity under the emperor of
China, becomes at the time of his birth a citizen of the United States." U.S. v.
Wong Kim Ark, 169 U.S. 649, 705.
Since the Court could not establish citizenship for the petitioner under the natural-born
citizen standard invoked by the Court in Minor, resort was made to the 14th Amendment
to do so. The holding, and question presented, directly refer to the domicile of the
parents. And the Court's opinion specifically indicates that a permanent domicile is
required for the native-born children of aliens to be entitled to citizenship:
"In a very recent case, the supreme court of New Jersey held that a person born in
this country of Scotch parents who were domiciled, but had not been naturalized,
here, was 'subject to the jurisdiction of the United States,' within the meaning of
the fourteenth amendment, and was 'not subject to any foreign power,' within the
meaning of the civil rights act of 1866; and in an opinion delivered by Justice Van
Syckel, with the concurrence of Chief Justice Beasley, said: ‘. . .unless the
general rule that, when the parents are domiciled here, birth establishes the
right to citizenship, is accepted, the fourteenth amendment has failed to
accomplish its purpose . . . ' Benny v. O'Brien (1895) 58 N. J. Law, 36, 39, 40, 32
Atl. 696.
“The foregoing considerations and authorities irresistibly lead us to these
conclusions . . .The amendment, in clear words and in manifest intent, includes
the children born within the territory of the United States of all other persons, of
whatever race or color, domiciled within the United States. Every citizen or
subject of another country, while domiciled here, is within the allegiance and the
protection, and consequently subject to the jurisdiction, of the United States."
U.S. v. Wong Kim Ark, 169 U.S. 649, 692-693 (Emphasis added.)
In Benny v. O'Brien, the N.J. Supreme Court reversed a lower court's determination that a
candidate for local office was disqualified based upon a holding that, despite birth in the
U.S., the candidate, having been born of domiciled alien parents, was not a citizen of the
U.S. The N.J. Supreme Court held that the general rule of citizenship in this country, by
46
virtue of birth on U.S. soil, required the parents to be permanently domiciled here:
"Persons intended to be excepted are only those born in this country of foreign
parents who are temporarily traveling here, and children born of persons
resident here in the diplomatic service of foreign governments. Such children are,
in theory, born within the allegiance of the sovereign power to which they belong
or which their parents represent. . . In my opinion, therefore, Allan Benny is a
citizen of the United States in virtue of his birth here of alien parents who at the
time of his birth were domiciled in this country." Benny v. O'Brien, 58 N.J. 36,
39-40. (Emphasis added.) (App. Pg. 202.)
The requirement, for citizenship at birth under the 14th Amendment, that the alien
parents must be domiciled here, was upheld in Kwok Jan Fat v. White, 253 U.S. 454
(1920):
"It is not disputed that if petitioner is the son of Kwock Tuck Lee and his wife,
Tom Ying Shee, he was born to them when they were permanently domiciled in
the United States, is a citizen thereof, and is entitled to admission to the country.
United States v. Wong Kim Ark, 169 U.S. 649." Kwok Jan Fat v. White, 253 U.S.
454, 457.
President Obama's father was never a permanent resident of the United States, never
applied for citizenship, or declared an intent to become a citizen, and never had a
permanent domicile in this country. He was here as a “nonimmigrant student” (See App.
1.) on a temporary visa.
Since President Obama’s father was not domiciled here, the holding in Wong Kim Ark
does not cover him. Regardless, it has been a custom in this country to presume that
persons born here, whether the parents are domiciled or not, are citizens. But the nation is
still waiting for the Supreme Court to clarify the citizenship status of persons born here
who, because their parents are not domiciled here, do not fall within the holding of Wong
Kim Ark.
In Hamdi v. Rumsfeld, No. 03-6696 (April 28, 2004), Justice Scalia’s dissent (joined by
47
Justice Stevens) referred to Hamdi, a person born in the U.S. to parents here via the
father’s temporary work visa, as a “presumed citizen”.
The Foreign Affairs Manual, published by the U.S. Department of State, from 1995
through August 20, 2009, stated, at 7 FAM 1116.2-1(c), with regard to the holding in
Wong Kim Ark:
c. Pursuant to this ruling, it has been considered that:
(1) Acquisition of U.S. citizenship generally is not affected by the fact that the
parents may be in the United States temporarily or illegally; (App. Pg. 204.)
This was the language used by the Clinton and Bush administrations, and even the
Obama administration up until August 20, 2009. The words “considered” and “generally”
were placed in italics by the State Department to emphasize that the practice stated above
has never been clarified as law by the Supreme Court.
On this point, the Foreign Affairs Manual had been a rational document, in that it
reflected the true state of affairs. It stated the common presumption, but it refrained from
listing what was considered to be law, as if it actually was law.
On August 21, 2009, eight months into the Obama administration, the Foreign Affairs
Manual was changed to read:
d. “Subject to the Jurisdiction of the United States”: All children born in and
subject, at the time of birth, to the jurisdiction of the United States acquire U.S.
citizenship at birth even if their parents were in the United States illegally at
the time of birth.
(1) The U.S. Supreme Court examined at length the theories and legal precedents
on which the U.S. citizenship laws are based in U.S. v. Wong Kim Ark, 169 U.S.
649 (1898). In particular, the Court discussed the types of persons who are subject
to U.S. jurisdiction…
Pursuant to this ruling:
(a) Acquisition of U.S. citizenship generally is not affected by the fact that the
parents may be in the United States temporarily or illegally; (App. Pg. 206.)
48
This was a unilateral alteration. The language, which had been approved by the two prior
administrations, was scrapped, and replaced by the Obama administration with language
more suitable to the President’s very own situation. The holding in Wong Kim Ark did
not provide conclusive grounds to determine the President’s citizenship. At best, he was
presumed to be a citizen under the 14
th
Amendment, but not conclusively so.
Furthermore, according to well established legal principles, President Obama’s
citizenship status followed that of his father, an alien, according to the common law rule,
long adapted in this country, partus sequitur patrem.
Partus Sequitur Patrem.
The English common law rule - partus sequitur patrem – means that the child follows the
condition of the father. This rule has also been established by a multitude of federal and
state decisions, including those of the U.S. Supreme Court. It has arisen most often in
cases where the issue concerned whether a person, born of one American Indian parent,
and one non-Indian parent, was to be considered an Indian. The issue often required
determination in criminal cases where a person was trying to avoid jurisdiction of an
American court, at a time when our courts had no jurisdiction over Indian affairs between
Indians who lived on reservations.
The most extensive discussion of partus sequitur patrem comes from Ex Parte Reynolds,
20 F. Cas. 582, 1879 U.S. App. LEXIS 1666, 5 Dill. 394 (W.D. Ark., 1879), where the
rule was strictly followed:
[B]y the common law. . . [the] offspring follows the condition of the father, and
the rule partus sequitur patrem prevails in determining their status. 1 Bouv. Inst.,
198, §502; 31 Barb. 486; 2 Bouv. Law Dict. 147; Shanks v. Dupont, 3 Pet. [28
U.S.]242. This is the universal maxim of the common law with regard to freemen -
- as old as the common law, or even as the Roman civil law. . .
“No other rules than the ones above enumerated ever did prevail in this or any
other civilized country. In the case of Ludlam v. Ludlam, 31 Barb. 486, the
court says: ‘The universal maxim of the common law being partus sequitur
patrem, it is sufficient for the application of this doctrine that the father
should be a subject lawfully, and without breach of his allegiance beyond sea,
no matter what may be the condition of the mother.’
“The law of nations, which becomes, when applicable to an existing condition
49
of affairs in a country, a part of the common law of that country, declares the
same rule. Vattel, in his Law of Nations (page 101), says: ‘As the society
cannot exist and perpetuate itself otherwise than by the children of the
citizens, these children naturally follow the condition of their fathers and
succeed to their rights. * * * The country of the father is, therefore, that of
the children, and these become true citizens merely by their tacit consent.’
Again, on page 102, Vattel says: ‘By the law of nature alone, children follow
the condition of their fathers and enter into all their rights.’ This law of
nature, as far as it has become a part of the common law, in the absence of any
positive enactment on the subject, must be the rule in this case.” Ex Parte
Reynolds, 20 F. Cas. 582, 585. (Emphasis added.)
Besides being directly relevant to our prior discussion of the Law of Nations definition of
natural-born citizen, this holding from Ex Parte Reynolds was cited approvingly by
Justice Gray in Elk v. Wilkins:
“The Case of Reynolds was an indictment, in the circuit court of the United States
for the Western district of Arkansas, for a murder in the Indian country, of which
that court had jurisdiction if either the accused or the dead man was not an
Indian, and was decided by Judge PARKER in favor of the jurisdiction, upon the
ground that both were white men, and that, conceding the one to be an Indian by
marriage, the other never was an Indian in any sense. 5 Dill. 397, 404.” Elk v.
Wilkins, 112 U.S. 94, 108 (1884).
The Court’s holding in Ex Parte Reynolds on the partus sequitur patrem rule was also
followed in U.S. v. Ward, 42 F. 320, 1890 U.S. App. LEXIS 1586, 14 Sawy. 472 (S.D.
Cal., 1890), where the above passage and holding were directly quoted.
And the rule was also followed by the U.S. Supreme Court in Halbert v. U.S., 283 U.S.
753, 763 (1931), subject to an exception if the father has abandoned the child:
“The children of a marriage between an Indian woman and a white man usually
take the status of the father, but if the wife retains her tribal membership and the
children are born in the tribal environment and there reared by her, with the
husband failing to discharge his duties to them, they take the status of the
mother.”
Partus sequitur patrem was also followed in In Re Thenault, 47 F. Supp. 952, 1942 U.S.
Dist. LEXIS 2195 (1942), where a French diplomat father was married to a natural-born
citizen of the United States. Their child was born in the U.S., but was required to petition
for naturalization. The child followed the condition of the father and was not entitled to
U.S. citizenship on account of his native-born status to a citizen mother.
For purposes of allowing the child to petition for naturalization, a fiction was observed by
the Court, which held that, since the father was not subject to the jurisdiction of the U.S.,
the child was considered to have been born on French soil, and was therefore allowed to
50
petition for naturalization as if he had truly been born abroad.
If the holding of Wong Kim Ark (as confirmed by Kwok Jan Fat v. White, 253 U.S. 454)
is applied to President Obama’s situation, a similar result as In re Thenault should apply.
If the father of the child is not subject to the jurisdiction of the U.S. to the extent required
by the holding in Wong Kim Ark, then the child takes the father’s national character.
President Obama’s birth status is not covered by the holdings in Wong Kim Ark, and
Kwok Jan fat. Therefore, his status as a 14
th
Amendment citizen remains questionable.
He is, at best, presumed, or considered, to be a citizen under the 14
th
Amendment, but his
political status thereunder is certainly not conclusive, despite his administration having
changed the State Department Manual to indicate otherwise.
G. President Obama Is A Naturalized Citizen Under Title 8 U.S.C. § 1405.
If President Obama had been born in any other State but Hawaii, his status as a U.S.
citizen would only be presumed, as discussed above. Assuming birth in Hawaii, President
Obama was naturalized at birth by Title 8 U.S.C. § 1405, which states:
§ 1405. PERSONS BORN IN HAWAII
A person born in Hawaii on or after August 12, 1898, and before April 30, 1900,
is declared to be a citizen of the United States as of April 30, 1900. A person born
in Hawaii on or after April 30, 1900, is a citizen of the United States at birth. A
person who was a citizen of the Republic of Hawaii on August 12, 1898, is
declared to be a citizen of the United States as of April 30, 1900.
This statute was first enacted as part of the Immigration and Nationality Act of 1952 (aka
the McCarren Act). It served to naturalize anyone born in Hawaii. But in 1959, when
Hawaii became a State, the Hawaii Statehood Act, Sec. 20, continued this provision,
unchanged or modified, and the statute is still in force today.
It should be noted, however, that the statute does not require anyone born in Hawaii to
also be subject to the jurisdiction of the United States. In that regard, it is more relaxed
than the 14
th
Amendment. If the statute was invoked to establish citizenship outside of the
naturalization power of Congress, the statute would be subversive to the 14
th
Amendment. Congress has no authority to modify the Constitutional requirements of the
14
th
Amendment, other than by a new amendment. Therefore, this statute must be a
51
naturalization act.
If the Supreme Court were to restrict the application of Wong Kim Ark to its holding, this
naturalization statute would be President Obama’s only source of citizenship. But those
who require naturalization are not natural-born citizens:
“We start from the premise that the rights of citizenship of the native born and of
the naturalized person are of the same dignity and are coextensive. The only
difference drawn by the Constitution is that only the "natural born" citizen is
eligible to be President. Art. II, 1.” Schneider v. Rusk, 377 U.S. 163, 165 (1964).
This is a very important statement by the Supreme Court, in that it appears to specifically
recognize natural-born citizens as a subset of native-born citizens. It also clarifies that, to
be considered a natural-born citizen, one must be native-born. Therefore, all naturalized
persons, even those born of citizen parents outside of the United States are not eligible to
be President.
While some might argue that the Court used native-born and natural-born as synonyms
here, the Court’s use of quotation marks around “natural born” signals otherwise, and is
indicative of the Court’s respect for the exact words of the Constitution. While it’s
possible the Court was purposefully evasive as to the exact definition of natural-born
citizen, had they meant to say that all native-born citizens were eligible to be President,
they certainly could have phrased their statement clearly to that effect. That the Court
specifically declined to identify all native-born persons as natural-born, should be
respected as intentional.
For the purposes of the McCarren Act, naturalization was defined as the conferring of
nationality upon a person after birth, while §1405 confers citizenship at birth.
Regardless, Congress has no authority to increase its power in the citizenship lexicon,
which is directly limited to naturalization, simply by redefining the word. Furthermore,
the State Department Foreign Affairs Manual, at 7 FAM 1111 C., confirms that
naturalization may also take place at birth:
c. Naturalization – Acquisition of U.S. Citizenship Subsequent to Birth:
Naturalization is “the conferring of nationality of a State upon a person after birth,
52
by any means whatsoever” (INA 101(a)(23) (8 U.S.C. 1101(a)(23)) or conferring
of citizenship upon a person (see INA 310, 8 U.S.C. 1421 and INA 311, 8
U.S.C. 1422). Naturalization can be granted automatically or pursuant to an
application. (See 7 FAM 1140.) (Emphasis added.)
CONCLUSION.
Since President Obama does not qualify as a member of the class of persons identified as
natural-born citizens by the U.S. Supreme Court in Minor v. Happersett, he is not eligible
to be President of the United States, and his name, therefore, should not be allowed on
Georgia ballots for the 2012 Presidential election.
53
CERTIFICATION
I, Leo Donofrio, hereby certify that this brief has not been filed for any
improper purpose.
Signed: /s/ Leo Donofrio
_______________________________
  
 
Leo Donofrio, Esq., appearing Amicus Curia
New Jersey Bar No.
Dated:   January 23, 2012
54
PROOF OF SERVICE
I, Leo Donofrio, Esq., hereby certify that I personally served the
following document(s):
AMICUS BRIEF
By forwarding emails, to the following:
Dr. Orly Taitz 
Van R. Irion 
J. Mark Hatfield 
Michael Jablonski 
Dated:   January 23, 2012
Signed: /s/ Leo Donofrio
Leo Donofrio, Esq.
_______________________________
55
 
Calvin's Case 7 Coke Report 1a, 77 ER 377
 
The SEVENTH PART of the REPORTS of SIR EDWARD COKE, Knt. Lord
Chief Justice of the Common Pleas, of divers RESOLUTIONS and JUDGMENTS given,
upon solemn Arguments, and with great Deliberation and Conference of the reverend
Judges and Sages of the Law, of CASES IN LAW which were never Resolved or
Adjudged before: and the REASONS and CAUSES of the said Resolutions and
Judgments. Published in the Sixth Year of the Most High and Most Illustrious JAMES,
King of England, France, and, Ireland, and of Scotland the XLII. the Fountain of all Piety
and Justice, and the Life of the Law. With NOTES and REFERENCES, by JOHN
FARQUHAR FRASER, Esq., of Lincoln's Inn, Barrister-at-Law.
[7-Coke-1 a] * POSTNATI (A).
Calvin's Case 7 Coke Report 1a, 77 ER 377
Report Date: 1608
CALVIN'S CASE.
            Trin. 6 Jac. 1.
[See Low v. Routledge, 1865-68, LR 1 Ch 47; LR 3 HL 100; Reg v. Keyn, 1876, 2 Ex.
D. 236; De Geer v. Stone, 1882, 22 Ch D. 251. Dicta at 27 b dissented from, In re
Stepney Election Petition, 1886,17 QBD 46; In re Johnson [1903] 1 Ch. 833.]
            James by the grace of God of England, Scotland, France, and Ireland, King,
defender of the faith, &c. To the Sheriff of Middlesex greeting: Robert Calvin,
 
7 Coke Report 2 a, 77 ER p378
gent, hath complained to us, that Richard Smith and Nicholas Smith, unjustly, and
without judgment, have disseised him of his freehold in Haggard, otherwise Haggerston,
otherwise Aggerston, in the parish of St. Leonard, in Shoreditch, within thirty years now
last past; and therefore we command you, that if the said Robert shall secure you to
prosecute his claim, then that you cause the said tenement to be reseised with the chattels
which within it were taken, and the said tenement with the chattels to be in peace until
Thursday next after fifteen days of Saint Mai-tin next coming; and, in the mean time,
cause twelve free and lawful men of that neighbourhood to view the said tenement, and
the names of them to be inbreviated; and summon them by good summoners, that they be
then before us wherever we shall then be in England, ready thereof to make recognition;
and put, by sureties and safe pledges, the aforesaid Richard and Nicholas, or their bailiffs,
(if they cannot be found), that they be then there, to hear the recognition; and have there
the summoners, the names of the pledges, and this writ. Witness ourself at Westminster,
the 3d. day of November, in the 5th year of our reign of England, France, and Ireland,
and of Scotland the one-and-fortieth.
            For 40s. paid in the hamper,
KINDESLEY.
            Middlesex, ss. The assize cometh to recognise, if Richard Smith, and Nicholas
Smith unjustly, and without judgment, did disseise Rob. Calvin, gent of his freehold
inetb] Haggard, otherwise Haggerston, otherwise Aggerston, in the parish of St. Leonard
in Shoreditch, within thirty years now last past: and whereupon the said Robert, who is
within the age of twenty-one years, by John Parkinson, and William Parkinson, his
guardians, by & Court, of the said King here to this being jointly and severally specially
admitted, complaineth, that they disseised him of one messuage with the appurtenances,
&c. And the said Richard and Nicholas, by William Edwards, their attorney, come and
say, that the said Robert ought not to be answered to his writ aforesaid, because they say,
that the said Robert is an alien born, on the 5th day of Noy in the 3rd year of the reign of
the King that now is, of England, France, and Ireland, and of Scotland the thirty-ninth, at
Edinburgh within his kingdom of Scotland aforesaid and within the allegiance of the said
lord the King, of the said kingdom of Scotland, and out of the allegiance of the said lord
56
the King of his kingdom of England; and at the time of the birth of the said Robert
Calvin, and long before, and continually afterwards, the aforesaid kingdom of Scotland,
by the proper rights, laws, and statutes of the same kingdom, and not by the rights, laws,
or statutes of this kingdom of England, was and yet is ruled and governed. And this he is
ready to verify, and thereupon prayeth judgment, if the said Robert, to his said writ
aforesaid, ought to be answered, &c. And the aforesaid Robert Calvin saith, that the
aforesaid plea, by the aforesaid Richard and Nicholas above pleaded, is insufficient in
law to bar him the said Robert from having an answer to his writ aforesaid; and that the
said Robert to the said plea in manner and form aforesaid pleaded, needeth not, nor by the
law of the land is bound to answer; and this he is ready to verify, and hereof prayeth
judgment; and that the said Richard and Nicholas to the aforesaid writ of the said Robert
may answer. And the said Richard and Nicholas, forasmuch as they have above alleged
sufficient matter-in law to bar him the said Robert from having an answer to his said writ,
which they are ready to verify; which matter the aforesaid Robert doth not gainsay, nor to
the same doth in any ways answer, but the said averment altogether refuseth to admit as
before pray judgment, if the aforesaid Robert ought to be answered to his said writ, &c.
And because the Court of the lord the King here are not yet advised of giving their
judgment of and upon the premises, day thereof is given to the parties aforesaid; before
the lord the King at Westminster until Monday next after eight days of St. Hilary, to hear
their Judgment thereof, because the Court of the lord the King here thereof are not yet,
&;. And the assize aforesaid remains to be taken before the said lord the King, until the
same Monday there, &c. And the sheriff to distrain the recognitors of the assize
aforesaid: and in the interim to cause a view, &c; at which day, before the lord the King
at Westminster, come as well the aforesaid Robert Calvin, by his guardians aforesaid, as
the aforesaid Richard Smith and Nicholas Smith by their attorney aforesaid; and because
 
7 Coke Report 2 a, 77 ER p379
the Court of the lord the King [7-Coke-2 a] here of giving their judgment of and upon the
premises is not yet advised, day thereof is given to the parties aforesaid before the lord
the King at Westminster, until Monday next after the morrow of the Ascension of our
Lord, to hear their judgment 3 because the Court of the lord the King here are not yet,
&c. And the assize aforesaid remains further to be taken, until the same Monday there,
&c. 3 and the sheriff, as before, to distrain the recognitors of the assize aforesaid, and in
the interim to cause a view, &c. At which day, before the lord the King at Westminster,
come as well the aforesaid Robert Calvin by his guardians aforesaid, as the aforesaid
Richard Smith and Nicholas Smith, by their attorney aforesaid, &c; and because the
Court of the lord the King here, &c.
            [2 a] THE CASE
A man born in Scotland after the accession of King James the First to the English throne,
and during his reign, may hold lands in England. S.C. Howel's State Trials, Vol. H. p.
559.
            The question of this case as to matter in law was, whether Robert Calvin the
plaintiff(being born in Scotland since the Crown of England descended to His Majesty)
be an alien born, and consequently disabled to bring any real or personal (a) action for
any lands within the realm of England. After this case had been argued in the 'Court of
King's Bench, at the Bar, by the counsel learned of either party, the Judges of that Court,
upon conference and consideration of the weight and importance thereof, adjourned the
same (according to the ancient and ordinary course and order of the law) into the (b)
Exchequer Chamber, to be argued openly there; first by the counsel learned of either
party, and then by all the Judges of England; where afterwards the case was argued by
Bacon, Solicitor-General, on the part of the plaintiff, and by Laur. Hide for the defendant;
and afterward by Hobart, Attorney-General, for the plaintiff, and by Serjeant Hutton for
the defendant; and, in Easter term last, the case was argued by Heron, puisne Baron of the
Exchequer, and Foster, puisne Judge of the Court of Common Pleas; and, on the second
57
day appointed for this case, by Crook, puisne Judge of the King's Bench, and Altham,
Baron of the Exchequer; the third day by Snigge, Baron of the Exchequer, and Williams,
one of the Judges of the King's Bench; the fourth day by Daniel, one of the Judges of the
Court of Common Pleas, and by Yelverton, one of the Judges of the King's Bench: and,
in Trinity term following, by Warburton, one of the Judges of the Common Pleas, and
Fenner, one of the Judges of the King's Bench; and after by Walmesley, one of the Judges
of the Common Pleas, and Tanfield, Chief Baron; and, at two several days in the same
term, Coke, Chief Justice of the Common Pleas, Fleming, Chief Justice f the King's
Bench, and Sir Thomas Eggerton, Lord Ellesmere, Lord Chancellor of England, argued
the case (the like plea in disability [7-Coke-2 b] of Robert Calvin's person being pleaded
mutatis mutandis in the Chancery in a suit there for evidence concerning lands of
inheritance; and, by the Lord Chancellor, adjourned also into the Exchequer-Chamber, to
the end that one rule might over-rule both the said cases), And first (for that I intend to
make as summary a report as I can) I will at the first set down such arguments and
objections as were made and drawn out of this short record against the plaintiff by those
that argued for the defendants. It was observed, that in this plea there were four nouns,
quatuor nomina, which were called nomina operative, because from them all the said
arguments and objections on the part of the defendants were drawn; that is to say 1.
Ligeantia (which is twice repeated in the plea; for it is said, infra ligeantiam domini Regis
regni sui Scot', et extra ligeantiam domini Regis regni sui Angl'). 2. Regnum (which also
appeareth to be twice mentioned, viz. regnum Angl', and regnum Scot'). 3. Leges (which
are twice alleged, viz. leges Angl', and leges Scot', two several and dis-
 
7 Coke Report 3 a, 77 ER p380
tinct laws). 4. Alienigena (which is the conclusion of all, viz. that Robert Calvin is
alienigena).
            1. Ligeantia. By the first it appeareth, that the defendants do make two ligeances,
one of England, and another of Scotland; and 'from these several ligeances two
arguments were framed, which briefly may be concluded thus: Whosoever is born infra
ligeantiant, within the ligeance of King James of his kingdom of Scotland, is alienigena,
an alien born, as to the kingdom of England: but Robert Calvin was born at Edinburgh,
within the ligeance of the King of his kingdom of Scotland; therefore Robert Calvin is
alienigena, an alien born, as to the kingdom of England. 2. Whosoever is born extra
ligeantiam, out of the ligeance of King James of his kingdom of England, is an alien as to
the kingdom of England: but the plaintiff was born out of the ligeance of the King of his
kingdom of England; therefore the plaintiff is an alien, &c. Both these arguments are
drawn from the very words of the plea, viz. quod præd' Robertus est alienigena, natus 5
Nov anno regni domini Regis nunc Angl' &c. tertio apud Edenburg infra regnum Scot' ac
infra ligeantiam, dicti domini Regis dicti regni sui Scot', ac extra ligeantiam dicti domini
Regis regni sui Angl'.
            2. Regna. From the several kingdoms, viz. regnum, Angl' and regnum, Scot' three
arguments were drawn. 1. Quando (a) duo jura (imo duo regna) concurrunt in una
persona, cequum est ac si essent in diversis: but in the King's person there concur two
distinct and several kingdoms; therefore it is all one as if they were in divers persons, [7-
Coke-3 a] and consequently the plaintiff is an alien, as all the antenati are, for that they
were born under the ligeance of another King. 2. Whatsoever is due to the King's several
politic capacities of the several kingdoms is several and divided: but ligeance of each
nation is due to the King's several politic capacities of the several kingdoms; ergo, the
ligeance of each nation is several and divided, and consequently the plaintiff is an alien,
for that they that are born under several ligeances are aliens one to another. 3. Where the
King hath several kingdoms by several titles and descents, there also are the ligeances
several: but the King hath these two kingdoms by several titles and descents; therefore
the ligeances are several. These three arguments are collected also from the words of the
plea before remembered.
58
            3. Leges. From the several and distinct laws of either kingdom, they did reason
thus: 1. Every subject that is born out of the extent and reach of the laws of England,
cannot by judgment of those laws be a natural subject to the King, in respect of his
kingdom of England: but the plaintiff was born at Edinburgh, out of the extent and reach
of the laws of England; therefore the plaintiff by the judgment of the laws of England
cannot be a natural subject to the' King, as of his kingdom of England. 2. That subject,
that is not at the time and in the place of his birth inheritable to the laws of England,
cannot be inheritable or partaker of the benefits and privileges given by the laws of
England: but the plaintiff at the time, and in the place of his birth was not inheritable to
the laws of England, (but only to the laws of Scotland;) therefore he is not inheritable or
to be partaker of the benefits or privileges of the laws of England. 3. Whatsoever
appeareth to be out of the jurisdiction of the laws of England, cannot be tried by the same
laws: but the plaintiff's birth at Edinburgh is out of the jurisdiction of the laws of
England; therefore the same cannot be tried by the laws of England. Which three
arguments were drawn from these words of the plea, viz. Quodque tempore nativitatis
præd'Roberti Calvin, ac diu antea, et continu? postea, præd' regnum, Scot' per jura, leges,
et statuta ejusdem regni propria, et non per jura, leges, seu statula hujus regni Angl'
regulat' et gubernat fuit, et adhuc est.
            4. Alienigena. From this word alienigena they argued thus: every subject that is
alien' gentis (i, e.) alien' ligeant', est alienigena: but such a one is the plaintiff; therefore,
&c. And to these nine arguments all that was spoken learnedly and at large by those that
argued against the plaintiff may be reduced.
            [7-Coke-3 b] But it was resolved by the Lord Chancellor and twelve Judges, viz.
the two Chief Justices, the Chief Baron, Justice Fenner, Warberton, Yelverton, Daniel,
Williams, Baron Snigge, Baron Altham, Justice Crooke, and Baron Heron, that the
 
7 Coke Report 4 a, 77 ER p381
plaintiff was no alien, and consequently that he ought to be answered in this assise by the
defendants.
            This case was as elaborately, substantially, and judicially argued b the Lord
Chancellor, and by my brethren the Judges, as I over read or heard of any; and so in mine
opinion the weight and consequence of the cause, both in præsenti et perpetuis futuris
temporibus justly deserved,: for though it was one of the shortest and least that ever we
argued in this Court, yet was it the longest and weightiest that ever was argued in any
Court, the shortest in syllables, and the longest in substance; the least for the value (and
yet not tending to the right of that least) but the weightiest for the consequent, both for
the present, and for all posterity. And therefore it was said, that those that had written de
fossilibus did observe, that gold bidden in the bowels of the earth, was in respect of the
mass of the whole earth, pram in mango; but of this short plea it might be truly said
(which is more strange) that here was magnum in Parco. And in the arguments of those
that argued for the plaintiff, I specially noted, that albeit they spake according to their
own heart, yet they spake not out of their own bead and invention: wherein they followed
the counsel given in God's book, interroga pristinam generationem (for out of the old
fields must come the new corn) et diligenter investiga patrum memoriam, and diligently
search out the judgments of our forefathers, and that for divers reasons: first on our own
part, Hesterni enim sumus et ignoramus, et vita nostra sicut umbra super terram; for we
are but of yesterday, (and therefore had need of the wisdom of those that were before us)
and had been ignorant (if we had not received light and knowledge from our forefathers)
and our days upon the earth are but as a shadow, in respect of the old ancient days and
times past, wherein the laws have been by the wisdom of the most excellent men, in
many successions of ages, by long and continual experience, (the trial of right and truth)
fined and refined, which no one man, (being of so short a time) albeit he had in his head
the wisdom of all the men in the world, in any one age could ever have effected or
attained unto. And therefore it is optima regula, qua nulla est verior aut firmior in jure,
59
neminem oportet esse sapientiorem legibus: no man ought to [7-Coke-4 a] take upon him
to be wiser than the laws. Secondly, in respect of our forefathers: ipsi (saith the text)
docebunt te, et loquentur tibi, et ex corde suo preferent eloquentia, they shall teach thee,
and tell thee, and shall utter the words of their heart, without all equivocation or mental
reservation; they (I say) that cannot be daunted with fear of any power above them, nor
be dazzled with the applause of the popular about them, nor fretted with any
discontentment (the matter of opposition and contradiction) within them, but shall speak
the words of their heart, without all affection or infection whatsoever.
            Also in their arguments of this cause concerning an alien, they told no strange
histories, cited no foreign laws, produced no alien precedents, and that for two causes; the
one, for that the laws of England are so copious in this point, as, God willing, by the
report of this case shall appear; the other, lest their arguments concerning an alien born
should become foreign, strange, and an alien to the state of the question, which being
quæstio juris concerning freehold and inheritance in England, is only to be decided by the
laws of this realm. And albeit I concurred with those that adjudged the plaintiff to be no
alien, yet do I find a mere stranger in this case, such a one as the eye of the law (our
books and book-cases) never saw, as the ears of the law (our reporters) never heard of,
nor the mouth of the law (for judex est lex loquens) the Judges our forefathers of the law
never tasted: I say, such a one, as the stomach of the law, our exquisite and perfect
records of pleadings, entries, and judgments, (that make equal and true distribution of all
cases in question) never digested. In a word, this little plea is a great stranger to the laws
of England, as shall manifestly appear by the resolution of this case. And now that I bay
taken upon me to make a report of their arguments, I ought to do the same as truly, fully,
and sincerely as possibly 1 can. Howbeit, seeing that almost every Judge had in the
course of his argument a peculiar method, and I must only hold myself to one, I shall give
no just offence to any, if I challenge that which of right is due to every reporter, that is, to
reduce the sum and effect of all to such a method, as, upon consideration had of all the
arguments, the reporter himself thinketh to be fittest and clearest for the right
understanding of the true reasons and causes of the judgment and resolution of the case in
question.
 
7 Coke Report 4 b, 77 ER p382
            In this case five things did fall into consideration. 1. Ligeantia. 2. Leges. 3.
Regna. 4. Alienigena. 5. Which legal inconveniences would ensue on either side.
            [7-Coke-4 b] 1. Concerning ligeance: 1. It was resolved that ligeance was: 2. How
many kinds of ligeances there were: 3. Where ligeance was due: 4. To whom it was due:
and last, how it was due.
            2. For the laws: 1. That ligeance or obedience of the subject to the Sovereign is
due by the law of nature: 2. That this law of nature is part of the laws of England:
            3. That the law of nature was before any judicial or municipal law in the world:,
            4. That the law of nature is immutable, and cannot be changed.
            3. As touching the kingdoms, how far forth by the act of law the union is already
made, and wherein the kingdoms do yet remain separate and divided.
            4. of alienigena, an alien born: 1. What an alien born is in law: 2. The division and
diversity of aliens: 3. Incidents to every alien: 4. Authorities in law: 5. Demonstrative
conclusions upon the premises, that the plaintiff can be no alien.
            5. Upon due consideration had of the consequent of this case: what
inconveniences legal should follow on either party.
            And these several parts, I will, in this report, pursue in such order as they have
been propounded; and, first, de, ligeantia.
            1. (a) Ligeance is a true and faithful obedience of the subject due to his Sovereign.
- This ligeance and obedience is an incident inseparable to every subject: for as soon as
he is born he oweth by birth-right ligeance and obedience to his Sovereign. Ligeantia est
vinculum fidei; and ligeantia est quasi legis essentia. Ligeaalia est ligarnentum, quasi
60
ligatio mentium: quia sicut ligamentum est connexio articulorum et juncturarum, &c. As
the ligatures or strings do knit together the joints of all the parts of the body, so doth
ligeance join together the Sovereign and all his subjects, quasi uno ligamine. Glanville,
who wrote in the reign of H. 2. lib. 9. cap. 4. speaking of the connexion which ought to
be between the lord and tenant that holdeth by hone saith, that mutua debet esse domini et
fide litatis connexion ita quod quantum debet omino ex homagio, tantum illi debet
dominus ex dominio, præter solam reverentiam, and the lord, (saith he) ought to defend
his tenant. But between the Sovereign and the subject there is without comparison a
higher and greater connexion: for as the subject oweth to the King his true and faithful
ligeance and obedience, so the Sovereign is to govern and protect his subjects, [7-Coke-5
a] regere et firotegere subditos: so as between the Sovereign and subject there is duplex et
reciprocum ligamen; quia sicut subditus regi tenetur ad obedientiam, ita rex subdito
tenetur ad protectionem: merito igitur ligeantia dicitur a ligando, quia continet in se
duplex ligamen. And therefore it is holden in 20 H. 7. 8. a. that there is a liege or ligeance
between the King and the subject. And Fortescue, cap. 13. Rex (b) ad tutelam legis
corporum et bonorum subditorum erectus est. And in the Acts of Parliament of IO R. 2.
cap. 5. and 11 R. 2. cap. 1. 14 H. 8. cap. 2. &c. subjects are called liege people; and in the
Acts of Parliament in 34 H. 8. cap. 1. and 35 H. 8. cap. 3. &c. the King is called the liege
lord of his subjects. And with this agreeth M. Skeene in his book De Expositione
Verborum, (which book was cited by one of the Judges which argued against the
plaintiff) ligeance is the mutual bond and obligation between the King and his subjects,
whereby subjects are called his liege subjects, because they are bound to obey and serve
him; and he is called their liege lord, because he should maintain and defend them.
Whereby it appeareth, that in this point the law of England and of Scotland is all one.
Therefore it is truly said that protectio trahit subjectionem, et subjectio protectionem. And
hereby it plainly appeareth, that ligeance doth not begin by the oath in the leet; for many
men owe true ligeance that never were sworn in a leet, and the swearing in a leet maketh
no (c) denization, as the book is adjudged in 14 H. 4. fol. 19. b. This word ligeance is
well expressed by divers several names or synonyma which we find in our books.
Sometimes it is called the obedience or obeisance of the subject to the King, obedientia
 
7 Coke Report 5 b, 77 ER p383
Regi, 9 E. 4. 7. b. 9 E. 4. 6. (d) 2 R. 3. 2. a. in the Book of Entries, Ejectione Firm' 7. 14
H. 6. cap. 2. 22 H. 8. cap. 8. &c. Sometimes he is called a natural liege man that is born
under the power of the King, sub potestate Regis, 4 H. 3. (e) tit. Dower. Vide the statute
of 11 E. 3. c. 2. Sometimes ligeance is called faith, fides, ad fidem Regis, &c. Bracton,
who wrote in the reign of H. 3. lib. 5. Tractat' de Exception', cap. 24. fol. 427. Est etiam
alia exceptio quæ competit ex person‚ quærenti‚, proper defectum nationis, ut si quis
alienigena qui fuit ad fidem Regis Franc', &c. And Fleta (which book was made in the
reign of E. 1.) agreeth therewith; for 1. 6. C. 47. de except' ex omissione Participis, it is
said, vel decere potuit, quod nihil juris clamare poterit tanquam paraticeps eo quod est ad
fidem Regis Franciæ, quia alienigenæ repelli debent in Angl' ab agendo, donec fuerunt ad
fidem Reg' Angl'. Vide 25 E. 3. de natis ultra mare, faith and ligeance of the King of
England; and Litt lib. 2. cap. Homage, (b) saving the faith that I owe to our Sovereign
Lord the King, and Glanv. 1. 9. c. 1. Salva fide debita, dom' Regi e- hæredibus suis.
Sometimes ligeance is [7-Coke-5 b] called ligealty, 22 Ass pl. 25. By all which it
eVidently appeareth, that they that are born under the obedience, power, faith, ligealty, or
ligeance of the King, are natural subjects, and no aliens. So, as seeing now it doth appear
what ligeance is, it followeth in order, that we speak of the several kinds of ligeance. But
herein we need to be very wary, for this caveat the law giveth, ubi lex non distinguit nec
nos distinguere debemus; and certainly, lex non distinguit, but where omnia membra
dividentia, are to be found out and proved by the law itself.
            2. There is found in the law four kinds of ligeances; the first is, ligeantia naturalis,
absoluta pura, et indefinite, and this originally is due by nature and birth-right, and is
61
called alta ligeantia, and he that oweth this is called subditus natus. The second is called
ligeantia acquisita, not by nature but by acquisition or denization, being called a denizen,
or rather donaizon, because he is subditus datus. The third is, ligeantia localis, wrought
by the law; and that is when an alien that is in amity cometh into England, because as
long as he is within England, he is within the King's protection; therefore so long as he is
here, he oweth unto the King a local obedience or ligeance, for that the one (as it hath
been said) draweth the other. The fourth is a legal obedience, or ligeance which is called
legal, because the municipal laws of this realm have prescribed the order and form of it;
and this to be done upon oath at the torn of the leet. The first, that is, ligeance natural, &c.
appeareth by the said Acts of Parliament, wherein the King is called natural liege lord,
and his people natural liege subjects; this also doth appear in the indictments of treason
(which of all other things are the most curiously and certainly indicted and penned) for in
the indictment of the Lord Dacre, in 26 H. 8. it is said præd' Dominus Dacre debitum
fideietligeant suæ, quod præfato, domino Regi naturaliter et de jure impendere debuit,
minime curans, &c. And Reginald Pool was indicted in 30 H. 8. for committing treason
contradom' Regem supremum et naturalem dominum suum. And to this end were cited
the indictment of Edward Duke of Somerset in 5 E. 6. and many others both of ancient
and later times. But in the indictment of treason of John Dethick in 2 and 3 Phil and Mar
it is said, quod præd' Johannes machinans; &c. prædict' dominum Philippum et dominam
Mariam supremos dominos suos, and omitted (naturalis) because King Philip was not his
natural liege lord. And of this point more shall be said when we speak of local obedience.
The second is ligeant' acquisita, or denization; and this in the books and records of the
law appeareth to be threefold: 1. Absolute, as the common denizations be, to them and
their [7-Coke-6 a] heirs, without any limitation or restraint: 2. Limited, as when the King
doth grant letters of denization to an alien, and to the heirs (a) males of his body, as it
appeareth in 9 E. 4. fol. 7, 8. in Baggot's case: or to an alien for term of his life, as was
granted to J. Reynel, 11 H. 6. 3. It may be granted upon (b) condition, for (c) cujus est
dare, ejus est disponere, whereof I have seen divers precedents.
 
7 Coke Report 6 b, 77 ER p384
And this denization of an alien may be effected three manner of way as it was in 3 A. 6.
55. in dower: by letters patent, as the usual conquest, as if the King and his subjects
should conquer another kin as well antenati as postnati, as well, they which fought in the
field remained at home, for defence of their country, or employed denizens of the
kingdom or dominion conquered. of which point hereafter.
            3. Concerning the local obedience it is observable, that as there on the King's part,
so there is a (d) local ligeance of the sub this appeareth in 4 Mar. Br. 32. (e) and 3 and 4
Ail and Mar. Dy Frenchman, being in amity with the King, came into England, and
subjects of this realm in treason against the King and Queen, a concluded (f)
contraligeant' suæ debitum; for he owed to the King that is, so long as he was within the
King's protection; which Loa but momentary and uncertain, is yet strong enough to make
a nat. he hath issue here, that issue is (g) a natural born subject; a fortiori under the
natural and absolute ligeance of the King (which, as it alta ligeantia) as the plaintiff in the
case in question was, ought to subject; for localis ligeantia, est ligeantia intima et minima,
et maxim? incerta. And it is to be observed, that it is nec cælum, nec solum, neither the
soil, but ligeantia and obedientia that make the subject born; for come into the realm, and
possess town or fort, and have issue the subject to the King of England, though he be
born upon his meridian, for that he was not born under the ligeance of a subject
protection of the King. And concerning this local obedience, a pre Hilar. 36 Eliz when
Stephano Ferrara de Gama, and Emanuel Lewis Tinoco, two Portuguese born, coming to
England under Queen Elizabeth's safe conduct, and living here under her protection,
joined with Doctor Lopez in treason within [7-Coke-6 b] this realm against Her Majesty;
and in this case two points were resolve First, that their indictment ought to begin, that
they intended trea Reginam. &c. omitting these words (naturalem domin suam) and ought
62
(a) ligeant' suæ debitum. But if an (b) alien enemy come to invade I taken in war, he
cannot be indicted of treason (B); for the indict cannot conclude contraligeant suæ
debitum, for he never was in the protection of owed any manner of ligeance unto him, but
malice and enmity, and be put to death by martial law. And so it was in anno 15 H. 7. i
case, who being an alien born in Flanders, feigned himself to be a Edward the Fourth, and
invaded this realm with great power, with upon him the dignity Royal: but being taken in
the war, it was justices, that he could not be punished by the common law, but be and
marshal (who had special commission under the Great Seal to E the same according to
martial law) he had sentence to be quartered, which was executed accordingly. And this
appearet Griffith Attorney-General, by an extract out of the book of Hobart, to King H. 7.
            4. Now are we to speak of legal ligeance, which in our books viz. 7 E. 2. Tit.
Avowry 211. 4 E. 3. fol. 42. 13 E. 3. tit. Avowry 120, &c. is called suit Royal,
 
7 Coke Report 7 a, 77 ER p385
because that the ligeance of the subject is only due unto the King. This oath of ligeance
appeareth in Britton, who wrote in anno 5 E. 1. cap. 29. (and is yet commonly in use to
this day in every leet) and in our books; the effect whereof is: "You shall swear, that from
this day forward, you shall be true and faithful to our Sovereign Lord King James and his
heirs, and truth and faith shall bear of life and memeber and terrence honour, and you
shall neither know nor hear of any ill or damage intended unto him that you shall not
defend. So help you Almighty God." The substance and effect hereof is, as hath been
said, due by the law of nature, ex institutione naturæ, as hereafter shall appear: the form
and addition of the oath is, ex provisione hominis. In this oath of ligeance five things wre
observed. 1. That for the time it is indefinite, and without limit, "from this day forward."
Secondly, two excellent qualities are required, that is, to be "true and faithful." 3. To
whom, "to our Sovereign Lord the King and his heirs:" (and albeit Britton doth say, to the
K. of Eng. that is spoken proper excellentiam, to design the person, and not [7-Coke-7 a]
to confine the ligeance; for a subject doth not swear his ligeance to the King, only as
King of England, and not to him as King of Scotland, or of Ireland, &c. but generally to
the King). 4. In what manner; "and faith and troth shall bear, &c. of life and memeber,"
that is, until the letting out of th elast drop of our dearest heart's blood. 5. Where and in
what places ought these things to be done, in all places whatsoever, for, "you shall neither
know nor hear of any ill or damage, &c." that you shall not defend, &c. so as natural
ligeance is not circumscribed within any place. It is holden 12 H. 7. 18. b. that he that is
sworn in the leet, is worn to the King for his ligeance, that is, to be true and faithful to the
King; and if he be once sworn for his ligeance, he shall not be sworn again during his life.
And all letters patent of denization be, that the patentee shall behave himself tanquam
verus et fidelis ligeus domini Regis. And this oath of ligeance at the torn and leet was
first instituted by King Arthur; for so I read, Inter leges Sancti Edwardi Regis ante
conquestum 3 cap. 35. Et quod omnes principes et comites, proceres, milites et liberi
homines debent jurare, &c. in Folkemote, et similiter omnes proceres regni, et milites et
liberi homines universi totius regni Britann' facere debent inpleno Folkemote fidelitatem
domino Regi, &c. Hanc legem invenit Arthurus Rex Saracenot et inimicos a regno, &c. et
hujus legis authoritate Etheldredus Rex uno et eodem die per universum rregnum Danos
occidit. Bide Lambert inter leges Regis Edwardi, * &c. fol. 135 et 136. By this it
appeareth, when and from whom this legal ligeance had his first institution within this
realm. Ligeantia, in the case in question, is meant and intended of the first kind of
ligeance, that is, of ligeance natural, absolute, &c. due by nature and birth-right. But if
the plaintiff's father be made a denizen, and purchase lands in England to him and his
heirs, and die seised, this land shall never descend to the plaintiff, for that the King by his
letters patent may make a denizen, but cannot naturalize him to allpurposes, as an Act of
Parliament may do; neither can letters patent make any inheritable in this case, that by the
common law cannot inherit. And herewith agreeth 36 H. 6. tit. Denizen Br. 9.
            Homage in our book is two-fold, that is to say, homagium ligeum; and that is as
63
much as ligeance, of which Bracton speaketh, 1. 2. c. 35. f. 79. Soli Regi debet' sine
dominio seu servitio, [7-Coke-7 b] and there is homagium feodale, which hath his
original by tenure. In Fitz. Nat. Brev. 269. there is a writ for respiting of this later himage
which is due ratione feodi sive tenuræ: sciatis quod respectuamus homagium nobis de
terr' et tenementis quæ tenenter de nobis in capite debit'. But homagium ligeum, i, e.
ligeantia, is inherent and inseparable, and cannot be respited.
            3. Now are we come to (and almost past) the ocnsideration of this circumstance,
where natural ligeance should be due: for by that which hath been said, it appeareth, that
ligeance, and faith and truth which are her members and parts, are qualities of the mind
and soul of man, and cannot be circumscribed within the predicament of ubi, for that
were to confound predicaments, and to go about to drive (an absurd and impossible thing)
the predicament of quality into the predicament of ubi. Non respondetur ad hanc
quæstionem, ubi est? to say, Berus et fidelis subditus est; sed ad hand quætionem, qualis
est? Recte et apte respondetur, verus et fidelis ligeus, &c. est. But yet
 
7 Coke Report 8 a, 77 ER p386
for the greater illustration of the matter, the point was handled by itself, and that ligeance
of the subject was of as great an extent and latitude, as the Royal power and protection of
the King, et ? converso. It appeareth by the stat. of 11 H. 7. cap. 1. and 2 E. 6. cap. 2. that
the subjects of England are bound by their ligeance to go with the King, &c. in his wars,
as well within the realm, &c. as without. And therefore we daily see, that when either
Ireland, or any other of His Majesty's dominions, be infested with invasion or
insurrection, the King of England sendeth his subject out of England, and his subjects out
of Scotland, also into Ireland, for the withstanding or suppressing of the same, to the end
his rebels may feel the swords of either nation. And so may his subjects of Guernsey,
Jersey, Isle of Man, &c. be commanded to make their swords good against either rebel or
enemy, as occasion shall be offered; whereas if natural ligeance of the subjects of
England should be local, that is, confined within the realmof England or Scotland, &c.
then were not they bound to go out of the ocntinent of the realmof England or Scotland,
&c. And the opinion of Thirninge in 7 H. 4. tit. Protect' 100. is thus to be understood, that
an English subject is not compellable to go out of the realm without wages, according to
the statutes of 1 E. 3. c. 7. 18 E. 3. c. 8. 18 H. 6. c. 19, &c. 7 H. 7. c. 1. 3 H. 8. c. 5, &c. In
ann. 25 E. 1. Bigot Earl of Norfolk and Suffolk, and Earl Marshal of England, and Bohun
Earl of Hereford and High constble of England, did exhibit a petition to the King in
French which I habe seen anciently recorded) on [7-Coke-8 a] the behalf of the commons
of England, concerning how and in what sort they were to be employed in His Majesty's
wars out of the realm of England; and the record saith that, post multas et varias
altercationes, it was resolved, they ought to go but in such manner and formas after was
declared by the said statutes, which seem to be but declarative of the common law. And
this doth plentifully and namifestly appear in our books, being truly and rightly
understood. In 3 H. 6. tit. Protection 2. one had the benefit of a ptotection, for that he was
sent into the King's wars in comitiva of the protector; and it appeareth by the record, and
by the chronicles also, that this employment was into France; the greatest part thereof
then being under the King's actual obedience, so as the subjects of England were
employed into France for the defence and safety thereof: in which case it was observed,
that seeing the protector, who was a prorex, went, the same was adjudged a voyage
Royal, 8 H. 6. fol. 16. b. the Lord Talbot went with a company of Englishmen into
France, then also being for the greatest part under the actual obedience of the King, who
had the benefit of their protectins allowed unto them. And here were observed the words
of the writ in the Register, fol 88. where it appeareth, that men were employed in the
King's wars out of the realm per præceptum nostrum, and the usual words of the writ of
protection be in obsequio nostro. *32 H. 6. fol. 4. a. it appeareth, that Englishmen were
pressed into Guyienne. 44 E. 3. 12. a. into Gascoyne with the Duke of Lancaster, 17 H. 6.
tit. Protection, into || Gascoyne with the Earl of Huntington, steward of Guienne, 11 and
64
12 H. 4. 7. into (a) Ireland, and out of this realm with the Duke of Gloucester and the
Lord Knolles: vide (b) 19 H. 6. 35. b. And it appeareth in 19 Ed. 2. tit. Avowry 224. 26
Ass. 66. 7 H. 4. 19, &c. that there was forinsecum servitium foreign service, which
Bracton, fol. 36. calleth regale servitium; and in Fitz. N. B. 28. that the king may send
men to seve him in his wars beyond the sea. But thus much (if it be not in so plain a case
too much) shall suffice for this point for the King's power, to command the sevice of his
subjects in his wars out of the realm, whereupon it was concluded, that the ligeance of a
natural-born subject was not local, and confined only to England. Now let us see what the
law saith in time of peace, concerning the King's protection and power of command, as
well without the realm, as within, that his subjects in all places may be protected from
violence, and that justice may equally be administered to all his subjects.
            [7-Coke-8 b] In the Register, fol. 25 b. Rex universis et singulis admirall',
castellan', custodibus
 
7 Coke Report 9 a, 77 ER p387
castrorum, villar', et aliorum fortalitiorum præpositis, vicecom' majoribus, custumariis,
custodib' portuum, et alior' locor' maritimor' ballivis, ministr', et aliis fidel' suis, tam in
transmarinis quam in cismarinis partib' ad quos, &c. sallutem. Sciatis, quod suscepimus
in protectionem et defension' nostram, necnon ad salvam et securam gardiam nostram W.
veniendo in regnum nostrum Angl', et potestatem nostram, tam per terram quam per mare
cum uno valetto suo, ac res ac bona sua quæcunque ad tractand' cum dilecto nostro et
fideli L. pro redemptione prisonarii ipsius L. infra regnum et potestatem nostram præd'
per sex menses morando et exinde ad propria redeundo. Et ideo, &c. quod ipsum W. cum
valetto, rebus et bonis suis præd' veniendo in regn' et potestat' nostram præd tam per terr'
quam per mare ibid' ut prædict' est ex caus‚ antedict‚ morando, et exinde ad propria
redeundo, mauteneatis, protegatis, et defendatis; non inferentes, &c. per sex menses
duratur'. T. &c. In which writ three things are to be observed. 1. That the King hath fidem
et fideles in partib' transmarinis. 2. That he hath protection' in partib' transmarinis. 3. That
he hath potestatem inpartibus transmarinis. In the Register fo. 26. Rex universis et
singulis admirallis, castellanis, custodibus castrorum, villaru, et aliorum fortalitionrum
præpositis, vicecom majoribus, custumariis, custodib' portuum, et alior' locor'
maritimorum ballivis, ministris, et aliis fidelibus suis, tam in transmarinis quam in
cismarinis partibus ad quos, &c. salutem. Sciatis quod suscepimus in protectionem et
defensionem nostram, necnon in salvum et securum conductum nostr' I. valettum P. et L.
Burgensuim de Lyons obsidum nostrorum, qui de licenti‚ nostr‚ ad partes transmarinas
profecturus est, pro finantia magistrorum suorum prædict' obtinenda vel defenda, eundo
ad partes prædictas ibidem morando, et exinde in Angl' redeundo. Et ideo vobis
mandamus, quod eidem I. eundo ad partes præd' ibidem morando, et exinde in Angl'
redeundo, ut præd' est, in person‚, bonis, aut revus suis, non inferatis, seu quantum in
vobi sest ab aliis inferri permittatis injuriam, molestiam, &c. aut gravamen. Sed eum
potius salvum et securm conductum, cum per loca passus, seu districtus vestros transierit,
et super hoc requisiti fueritis, suis sumptibus habere faciatis. Et si quid eis forisfactum
fuerit, &c. reformari faciatis. In cujus, &c. per tres ann' durat' T. &c. And certainly this
was, when Lyons in France (bordering upon Burgundy, an ancient friend to England),
was under the actual obedience of King Henry VI. For the King commanded fidelibus
suis, his faithful magistrates there, [7-Coke-9 a] that if any injury were there done, it
should be by them reformed and redressed, and that they should protect the party in his
person and goods in peace. In the Register, fol. 26. two other writs: Rex omnibus
seneschallis, majoribus, juratis, paribus præpositis, ballivis et fidelibus suis in ducatu
Aquitaniæ ad quos, &c. salutem. Quia dilecti nobis T. et A. cives civitat' Burdegal' coram
nobis in Cancellar' nost' Angl' et Aquitan' jura sua prosequentes, et metuentes ex
verisimilibus conjecturis per quosdam sibi comminantes tam in corpore quam in rebus
suis, sibi posse grave damnum inferri, supplicaverunt nobis sibi de protectione regia
providere: nos volentes dictos T. et A. ab oppressionibus indebitis præservare,
65
suscepimus ipsos T. et A. res ac justas possessiones et bona sua quæcunque in
protectionem et salvam gardiam nostram specialem. Et vobis et cuilibet vestrum
injungmus et mandamus, quod ipsos T. et A. familias, res ac bona sua quæcunque a
violentiis et gravaminibus indebitits defendatis, et ipsos in justis possessionibussuis
manuteneatis. Et si quid in præjudicium hujus protectionis et salvæ gardiæ nost'
attentatum inveneritis, ad statum debitum reducatis. Et ne quis se possit per ignorantiam
excusare præsentem protectionem et salvam gardiam nostram faciatis in locis de quibus
requisiti fueritis infra district' vestrum publice intimari, inhibentes imnibus et singulis sub
pænis gravibus, ne dictis A. et T. seu famulis suis in personis seu rebus suis, injuriam
molestiam, damnum aliquod inferant seu gravamen: et penocellas nostras in locis et bonis
ipsorum T. et A. in signum protetionis et sal' gard' memorat', cum super hoc eoquisiti
fueritis, apponatis. In cujus, &c. dat' in palatio nostro Westm' sub Magni Sigilli
testimonio, sexto die Augusti anno 44 E. 3. - Rex universis et singgulis seneschallis,
constabular' castellanis, præposit', minist', et omnib' ballivis et fidelibus suis in dominio
nostro Aquitan' constitutis ad quos, &c. salut'. Volentes G. et R. uxor ejus favore prosequi
gratiose, ipsos G. et R. homines et familias suas ac justas possessiones, et bona sua
quæcunque, suscepimus in protectionem et defensionem nostram, necnon in salvam
gardiam nostram specialem. Et ideo vobis et cuilibet vestrum injungimus et mandamus,
quod ipsos G. et R. eorum homines, familias suas, ac justas possessiones et bona sua
quæcunque manuteneatis, protegatis, et defendatis: non inferentes eis seu quantum in
vobis est ab aliis inferri permittentes, injuriam, molestiam, damnum, vilentiam, impedi-
 
7 Coke Report 9 b, 77 ER p388
mentum aliquod seu gravamen. Et si quid eis forisfact', injuriatum vel contra eos indebite
attentatum fuerit, id eis sine dilatione corrigi, et ad statum debitum reduci faciatis, prout
ad vos et quemlibet vestrum noveritis pertinere: penocellas super domibus suis in signum
duratur' T. &c. [7-Coke-9 b] By all which it is manifest, that the protection and
government of the King is general over all his dominions and kingdoms, as well in time
of peace by justice, as in time of war by the sword, and that all be at his command, and
under his obedience. Now seeing poweer and protection draweth ligeance, it followeth,
that seeing the King's power, command, and protection extendeth out of England, that
ligeance cannot be local, or confined within the bounds thereof. He that is abjured the
realm, Qui abjurat regnum amittit regnum. sed non Regem, amittit patriam, sed non
patrem patriæ: for notwithstanding the abjuration, he oweth the King his ligeance, and he
remaineth within the King's protection; for the King may pardon and restore him to his
country again. So seeing that ligeance is a quality of the mind, and not confined within
any place; it followeth, that the plea that doth confine the ligeance of the plaintiff to the
kingom of Scotland, infra ligeantiam Regis reggni sui Scotiæ, et extra ligeantiam Regis
regni sui Angliæ, whereby the defendants do make one local ligeance for the natural
subjects of England, and another local ligeance for the natural subjects of Scotland, is
utterly insufficient, and against the nature and quality of natural lineage, as often it hath
been said. And Coke, Chief Justice of the Court of common Pleas, cited a ruled case out
of Hingham's Reports, tempore E. 1. which in his argument he shewed in Court written in
parchment, in an ancient hand of that time. Constance de N. brought a writ of ayel against
Roger de Cobledike and others. named in the writ, and counted that from the seisin of
Roger her grandfather it descended to Gilbert his son, and from Gilbert to Constance, as
daughter and heir. Sutton dit, Sir, el ne doit este responde, pur ceo que el est Francois et
nient de la ligeance ne a la foy Denglitterre, et demand judgement si el doit action aver:
that is, she is not to be answered, for that she is a French woman, and not of the ligeance,
nor of the faithof England, and damanded judgment, if she this action ought to have.
Bereford (then Chief Justice of the court of Common Pleas) by the rule of the Court
disalloweth the plea, for that it was too short, in that it referred ligeance and faith to
England, and not to the King: and thereupon Sutton saith as followeth: Sir, nous
voilomous averre, que el ne est my de la ligeance Denglitterre, ne a la foy le Roy et
66
demand jugement, et si vous agardes que el doit este responde, nous dirromus assets: that
is, Sir, we will aver, that she is not of the ligeance of England, nor of the faith of the
King, and demand judgment, &c; [7-Coke-10 a] which latter words of the plea (nor of the
faith of the King) referred faith to the King indefinitely and generally, and restrained not
the same to England, and thereupon the plea was allowed for good, according to the rule
of the Court: for the book saith, that afterward the plaintiff desired leave to depart from
her writ. The rule of that case of Cobledike, did (as Coke, Chief Justice, said) over-rule
this case of Calvin, in the very point now in question; for that the plea in this case doth
not refer faith or ligeance to the King indefinitely and generally, but limiteth and
restrainet faith and ligeance to the kingdom:Extra ligeantiam Regis regni sui Angliæ, out
of the ligeance of the King of his kingdom of Englan; which afterwards the Lord
Chancellor and the Chief Justice of the King's Bench, having copies of the said ancient
report, affirmed in their arguments. So as this point was thus concluded, Quod ligeantia
naturalis nullis claustris coercetur nullis metis refrænatur, nullis finibus premitur.
            4 and 5. By that which hath been said, it appeareth, that this legeance is due only
to the King; so as therein the question is not now, cui, sed quomodo debetur. It is true,
that the King hath two capacities in him: one a natural body, being descended of the
blood Royal of the realm; and this body is of the creation of Almighty God, and is subject
to death, infirmity, and such like; the other is a || politic body or capacity, so called,
because it is framed by the policy of man (and in 21 E. 4. 39. b. is called a mysticall
body;) and in this capacity the King is esteemed to be immortal, invisible, not subject to
death, infirmity, infancy, (a) nonage, &c. Pl. Com. in the case of The
 
7 Coke Report 10 b, 77 ER p389
Lord Barkley, 238. and in the case of The Duchy 213. 6 E. 3. 291. and 26 Ass pl. 54.
Now, seeing the King hath but one person, and several capacities, and one politic
capacity for the realm of England, and another for the realm of Scotland, it is necessary to
be considered, to which capacity ligeance is due. And it was resolved, that it was due to
the natural person of the King (which is ever accompanied with the politic capacity, and
the politic capacity as it were appropriated to the natural capacity), and it is not due to the
politic capacity only, that is, to his Crown or 'kingdom distinct from his natural capacity,
and that for divers reasons. First- every subject (as it hath been affirmed by those that
argued against the plaintiff) is presumed by law to be sworn to the King, which is to his
natural person, and likewise the King is sworn to his subjects, (as it appeareth in Bracton,
lib. 3. de Actionibus, cap. 9. fol. 107) which oath he taketh in his natural [1 0 b] person:
for the politic capacity is invisible and immortal; nay, the politic body hath no soul, for it
is framed by the policy of man. 2. In all indictments of treason, when any do intend or
compass mortem et destructionem domini Regis (which must needs be understood of his
natural body, for his politic body is immortal, and not subject to death,) the indictment
concludeth, contra (a) ligeantice suæ debitum; ergo, the ligeance is due to the natural
body. Vide Fit. Justice of Peace 53. and PI. Corn. 384. in The Earl of Leicester's case. 3.
It is true, that the King in genere dieth not but, no question, in individuo he dieth: as for
example, H. 8. E. 6. &c. and Queen Eliz died, otherwise you- should have many Kings at
once. In 2 and 3 Ph. and Mar. Dyer 228. (b) one Constable dispersed divers bills in the
streets in the night, in which it was written, that King E. 6. was alive, and in France, &c.:
and in Coleman-street in London, he pointed to a young man, and said, that he was King
Edward the Sixth. And this being spoken de individuo (and accompanied with other
circumstances) was resolved to be high treason; for the which Constable was attainted
and executed. 4 A (c) body politic (being invisible) can as a body politic neither make or
take homage: Vide 33 H. 8. tit. Fealty, Brook 15. 5. In fide, in faith or ligeance nothing
ought to be feigned, but ought to be exfidenonficla. 6. The King holdeth the kingdoi of
England by birthright inherent, by descent from the blood Royal, whereupon succession
doth attend; and therefore it is usually said, to the King, his heirs, and successors,
wherein heirs is' first named, and successors is attendant upon heirs. And yet in our
67
ancient books succession and successor are taken for hereditance and heirs. Bract. U. 2.
de Acquirendo Rerum Dominio c. 29. -Et sciend' est quod hæreditas est successio in
universum jus quod defunctus antecessor habuit, ex causd quacunque acquisitionis vel
successionis, et alibi affinitatis jure nulla successio permitlitur. But the title is by descent;
by Queen Elizabeth's death the Crown and kingdom of England descended to His
Majesty, and he was fully and absolutely thereby King, without any essential, ceremony
or act to be done ex postfacto: for coronation is but a Royal ornament and solemnization
of the Royal descent, but no part of the title. In the first year of His Majesty's reign,
before His Majesty's coronation, Watson (d) and Clerk;, se inar inpriests, and others,
were of opinion, that His Majesty was no complete and absolute King before his
coronation, but that coronation did add a confirmation-and perfection to the descent; and
therefore (observe their damnable and damned consequent) that they by (11 a] strength
and power might before his coronation take him and his Royal issue into their possession,
keep him prisoner in the Tower, remove such counsellors and great officers as pleased
them, and constitute others in their places, &c. And that these and other (acts) of like
nature could not be treason against His Majesty, before he were a crowned King. But it
was clearly resolved by all the Judges of England, that presently by the descent His
Majesty was completely and absolutely King, without any essential ceremony or act to be
done ex post facto, and that (e) coronation was but a Royal ornament, and outward
solemnization of the descent.
 
7 Coke Report 11 b, 77 ER p390
And this appeareth evidently by infinite precedents and book case example in a case so
clear for all) King Henry VI. was not crowned u his reign, and yet divers men before his
coronation were attain felony, &c. and he was as absolute and complete a King, both for
ma as for grants, &c. before his coronation, as he was after, as it appear of 1, 2, 3, 4, 5, 6,
and 7 years of the same King. And the like for many other Kings of this realm, which for
brevity in a case so which it manifestly appeareth, that by the laws of England there
regnum within the same. If the King be seised of land by a d dieth seised, this descent
shall toll the entry of him that right by 9 (a) E. 4. 51. But if the next King had it by
succession, that no entity, as it appeareth by Littleton, fol. 97. If a disseisor of an land to
the King who dieth seised, this descent taketh away the e as it is said in 34 H. 6. fol. 34.
(b) 45. lib. Ass pl. 6. Plow. Co case was; K. H. 3. gave a manor to his brother the Earl of
Co what time the same was a fee-simple conditional) K. H. 3. died, Statute of Donis
Conditional' (having no issue) by deed exchange warranty for other lands in fee, and died
without issue, and assets descended upon his nephew King Edward I; and it was a
warranty and assets, which descended upon the natural person of him of the possibility of
reverter. In the reign of Ed. 2. the Sp and the son, to cover the treason hatched in their
hearts, invented damned opinion, that homage and oath of ligeance was more by re
Crown (that is, of his politic capacity) than by reason of the person o upon which opinion
they inferred execrable and detestable conseq King do not demean himself by reason in
the right of his CroWD, bi by oath to remove the King. 2. Seeing that the King could not
b of law that ought to be done by the sword. 3. That his lieges b in aid of him, and in
default of him. All which were condemned b one in the reign of Ed. 2. called -Exilium
Hugonis le Spencer, and th Ed. 3. c. 1. Bracton, lib. 2. de Acquirendo Rerum Dominio, c.
24. f. enim Corona Regis facere justitiam et judic',ettenere pacem, et sine quib non potest
nee tenere; hujusmodi autem jura sive jurisdictiones ad pers transferri non polerunt, nee a
privatd, persond possideri, nee users nee hoc datum fuit ei desuper, sicut jurisdiclio
delegata delegari non pole remaneat cum ipso Rege. Et lib. 3. De Actionibus, cap. 9. fol
107. Separare autem debet Rex, cum sit Dei vicarius in terra, jus ab injuria, æquam ab
iniquo, ut honeste vivant, et quod nullus alium 16edat, et quod unicuique quod suum
contributione reddatur. In respect whereof one saith, that Corona est quasi cor menta sunt
misericordia et juslicia. And therefore a King's Crown of the laws, where justice, &c. is
administered; for so saith P. v. Coronam dicimus legis judicium esse, proplerea quod
68
cerlis est vinculis com nostra veluli religata coercetur. Therefore if you take that which is
signified by the Crown, that is, to do justice and judgment, to maintain the peace of the
land, &c. to separate right from wrong, and the good from the ill: that is to be U capacity
of the King, that in rei verilate hath capacity, and is adc wlth endowments as well of the
soul as of the body, and thereby and judgment according to right and equity, and to
maintain the find out and discern the truth, and not of the invisible and immo hath no
such endowments; for of itself it hath neither soul nor b divers books and Acts of
Parliament speak of the ligeance of England as 31 E. 3. tit. Cosinage 5. 52 Ed. 3. 2. 13 E.
3. tit. Brief 677. 25 Ed. 3. Stat. de Natis Ultra
 
7 Coke Report 12 a, 77 ER p391
Mare. All these and other speaking briefly in a vulgar manner (for (a) loquendum ut
vulgus) and not pleading (for sentiendum ut docti) are to be understood of the ligeance
due by the people of England to the King; for no man will affirm, that England itself,
taking it for the continent thereof, doth owe any [7-Coke-12 a] ligeance or faith, or that
any faith or ligeance should be due to it: but it manifestly appeareth, that the ligeance or
faith of the subject is proprium qu arto modo to the King, onmi soli et semper. And
oftentimes in the reports of our book cases, and in Acts of Parliament also, the Crown or
kingdom is taken for the King himself, as in Fitzh. Natur. Brey fol. 5. Tenure in capite is
a tenure of the Crown, and is a seignory in gross, that is of the person (C) of the King:
and so is 30 H. 8. Dyer fol. 44, 45. a tenure in chief, as of the Crown, is merely the tenure
of the person of the- King and therewith agreeth 28 H. 8. tit. Tenure 65. Br. The statute,
of 4 H. 5. cap ultimo gave priors aliens, which were conventual to the King and his heirs,
by which gift saith U H. 6. 34. the same were annexed to the Crown. And in the said'Act
of 2 Ed. 3. whereas it is said in the beginning, within the ligeance of England, it is twice
afterwards said in the said Act within the ligeance of the King, and yet all one ligeance
due to the King. So in 42 Ed. 3. fol. 2. where it is first said, the ligeance of England, it is
afterwards in the same case called the ligeance of the King; wherein though they used
several manner and phrases of speech, yet they intended one and the same ligeance. So in
our usual commission of assise, of gaol delivery, of oyer and terminer, of the peace, &c.
power is given to execute justice, secundum legem et consuetudinem regni nostri Angliæ;
and yet Littleton, lib. 2. in his chapter of Villenage, fol. 43. in disabling of a man that is
attainted in a præmunire saith, that the same is the King's law; and so doth the register in
the writ of adjura, regia style the same.
            The reasons and cause wherefore by the policy of the law the King is a body
politic, are three, viz. 1. causa majestatis, 2. causa necessitates, and 3. causa utililatis.
First, causa majestatis, the King cannot give or take but by matter of record for the
dignity of his person. Secondly, causa necessitalis, as to avoid the (a) attainder of him
that hath right to the crowd, as it appeareth in 1 H. 7. 4. lest in the interim there should be
an (b) interregnum, which the law will not suffer. Also by force of this politic capacity,
though the (c) King be within age, yet may he make leases and other grants (D), and the
same shall bind him; otherwise his revenue should decay, and the King should not be able
to reward service, &c. Lastly, causa utilitatis, as when lands and possessions descend
from his collateral ancestors, being subjects, as from the Earl [7-Coke-12 b] of March,
&c. to the King, now is the King seised of the same injure Coronæ, in his politic capacity;
for which cause the same shall go with the Crown; and there, albeit Queen Elizabeth was
of the half blood to Queen Mary, yet she in her body politic enjoyed all those fee-simple
lands, as by the law she ought, and no collateral cousin of the whole blood to Queen
Mary ought to have the same. And these are the causes wherefore by the policy of the law
the King is made a body politic: so as for these special purposes the law make him a body
politic, immortal and invisible, whereunto our liegance cannot appertain. But to conclude
this point, our liegance is to our natural liege Sovereign, descended of the blood royal of
the Kings of this realm. And thus much of this general part de ligeantid, now followeth
the Second Part, De Legibus, wherein these parts were considered first that the ligeance
69
or faith of the subject is due unto the King by the law of nature: secondly, that the law of
nature is part of the law of England: thirdly, that
 
7 Coke Report 13 a, 77 ER p392
the law of nature was before any judicial or municipal law: fourthly nature is immutable.
            The law of nature is that which God at the time of creation of infused into his
heart, for his preservation and direction; and this is lex æterna, the moral law, called also
the law of nature. And by this law, written God in the heart of man, were the people of
God a long time gone law was written by Moses, who was the first reporter or writer of
The Apostle in the second chapter to the Romans saith, Cum enim gentes quæ elegem
non habent naturaliter ea quæ legissunt faciunt. And this is within the moral law, honora
patrem, which doubtless doth extend to him that is pater patriæ. And these be the words
of the Great Divine, Hoc Deus in Sacris Scripturis jubet, hoc ut quilibet subditus obediat
superior and Aristotle, nature's secretary, lib. 1. Cap. 5. that jus naturale est, quod apud
omnes homines eandem habet potentiam. agree Bracton, lib. 1. cap. 5. and Fortescue,
cap. 8. 12. 13. and Student, cap. 2. and 4. And the reason hereof is, for that God a [7-
Coke-13 a] to all, and therefore the law of God and nature is one to al nature is the faith,
ligeance, and obedience of the subject due to superior. And Aristotle 1. Politicorum
proveth, that to command nature, and that magistracy is of nature: for whatsoever is
necessary for the preservation of the society of man is due by the law of nature and
government are necessary and profitable for the preservation man; therefore magistracy
and government are of nature. And erewith accordeth Tully, lib. 3. De legibus, sine
imperio nee domus ulla, nec civilas, nec universum genus stare, nec ipse denique mundus
potest. This law indeed is the eternal law of the Creator, infused into the heart of the time
of his creation, was two thousand years before any laws written judicial or municipal
laws. And certain it is, that before judicial were made, Kings did decide causes according
to natural equity, an any rule or formality of law, but did dare Jura. And this appeareth by
Fortescue, cap. 12 and 13. and by Virgil that philosophical poet, 7th Aeneid.
            Hoc Priami gestamen erat, cumjura, vocatis
            More claret populism
            And 5th AEneid.
            - Gandet regno Trojanus Acestes, Indicitlue forum et partibus dat jura vocatis.
            And Pomponius, lib. 2. cap. De Origine Juris, affirmeth the Superbus's time there
was no civil law written, and that Papirius observations into writing, which was called Jus
Civile Papirianum wherefore laws were made and published, appeareth in Fortescue,
Tully, lib. 2. officiorum: at cum jus æquabile ab uno viro homines non consequerentur,
inventi sunt leges. Now it appeareth by demonstrative reason faith, and obedience of the
subject to the Sovereign, was before judicial laws. 1. For that government and subjection
were long before any municipal or judicial laws. 2. For that it had been in vain to have
prescribed to such as owed obedience, faith, and ligeance before, in respect w' bound to
obey and observe them: Frustra, enim [7-Coke-13 b] feruntur leges nisi subditis et
obedientibus. Seeing then that faith, obedience, and ligeance are due by the law of nature,
it followeth that the same cannot be changed or taken away; or municipal laws have
inflicted and imposed in several places, or divers and several punishments and penalties,
for breach or not observance of the law of nature, (for that law only consisted in
commanding or prohibit certain punishment or penalty), yet the very law of nature itself
never was nor could be (a) altered or changed. And therefore it is certainly true, that (b)
jura naturalia
 
7 Coke Report 14 a, 77 ER p393
sunt immutabilia. And herewith agreeth Bracton, lib. 1. cap. 5. and Doctor and Student,
cap. 5 and 6. And this appeareth plainly and plentifully in our books.
            If a man hath a ward (e) by reason of a seigniory, and is outlawed, he forfeiteth
the wardship to the King: but if a man hath the wardship of his own son or daughter,
70
which is his heir apparent, and is outlawed, be doth not (a) forfeit this wardship; for
nature hath annexed it to the person of the father, as it appeareth in 33 H. 6. 55. b. -Et
bonus Rex nihil a bono patre differt, et patria dicitur a patre, quia habet communes
patrem, qui est pater patriæ. In the same manner, maris et fæminæ conjunctio est de jure
naturæ, as Bracton, in the same book and chapter, and St. Germin in his book of the
Doctor and Student, cap. 5. do hold. Now, if he that is attainted of treason or felony, be
slain by one that hath no authority, or executed by him that hath authority, but pursueth
not his warrant, in this case his eldest son can have no appeal (F), for he must bring his
appeal as heir, which being ex provisione hominis, he loseth it by the attainder of his
father; but his (b) wife (if any he have) shall have an appeal, because she is to have her
appeal as wife, which she remaineth notwithstanding the attainder, because maris et
fæminæ conjunctio is de jure naturæ, and therefore (it being to be intended of true and
right matrimony) is indissoluble; and this is proved by the book in 33 H. 6. 57. So if there
be mother and daughter, and the daughter is attainted of felony, now cannot she be heir to
her mother for the cause aforesaid; yet after her attainder, if she kill her mother, this is,
parricide and petit treason; for yet she remaineth her daughter, for that is of nature, and
herewith agreeth 21 E. 3. 17. b. If a man be attainted of felony or treason, he hath lost the
King's legal protection, for he is thereby utterly disabled to sue any action real or
personal (which is a greater disability than an alien in league hath) and yet such a person
so attainted hath not lost that [7-Coke-14 a] protection which by the law of nature is
given to this King, for that is indelebitis et immutabilis, and therefore the King may
protect and pardon him, and if any man kill him without warrant, he shall be punished by
the law as a manslayer, and thereunto accordeth 4 Ed. 4. and 35 H. 6. 57. 2 Ass pl. 3. By
the statute of 25 Ed. 3. cap. 22. a man attainted in a premunire, is by express words out of
the King's protection generally; and yet this extendeth only to legal protection, as it
appeareth by Littleton, fol. 43. for the Parliament could not take away that protection
which the 1w of nature giveth unto him; and therefore notwithstanding that statute, the
King may protect and pardon him. And though by that statute it was farther enacted, that
it should be done with him as with an enemy, by which words any man, might have slain
such a person (as it is holden in 24 H. 8. tit. Coron. Br. 197.) until the statute made anno 5
Eliz cap. 1. yet the King might protect and pardon him. A man outlawed is out of the
benefit of the municipal law; for so saith Fitz. N. B. 161. a. utlagatis est quasi extra legem
positus: and Bract. 1. 3. tract. 2. c. 11. saith, that ea put geret lupinum; and yet is he not
out either of his natural ligeance, or of the King's. natural protection; for neither of them
is tied to municipal laws, but is due by the law of nature, which (as hath been said) was
long before any judicial or municipal laws. And therefore if a man were outlawed for
felony yet was he within the King's natural protection, for no man but the sheriff could
execute him, as it is adjudged in, 2 lib. Ass pl. 3. Every subject is by his natural ligeance
bound to obey and serve his sovereign, &c. It is enacted by the Parliament of 23 H. 6. that
no man should serve the Kin as sheriff of any county, above one year, and that
notwithstanding any clause of non obstante to the contrary, that is to say, notwithstanding
that the King should expressly dispense with the said statute: howbeit it is agreed in 2 H.
7. that, against the express purview of that Act, the King may, by a special non obstante
dispense with that Act, for that the Act could not bar the King of the service of his
subject, which the law of nature did give unto him. By these and many other cases that
might be cited out of our books, it appeareth, how plentiful the authorities of
 
7 Coke Report 14 b, 77 ER p394
our laws be in this matter. Wherefore to conclude this point (and to exclude all that hath
been or could be objected against it) if the obedience and ligeance of the subject to his
sovereign be due by the law of nature, if that law be parcel of the laws, as well of
England, as of all other nations, and is immutable, and that postnati and we of England
are united by birthright, [7-Coke-14 b] in obedience and ligeance (which is the true cause
of natural subjection) by the law of nature; it followeth that Calvin the plaintiff being
71
born under one ligeance to one King, cannot be an alien born; and there is great reason,
that the law of nature should direct this case, wherein five natural operations are
remarkable: first the King hath the Crown of England by birthright; being naturally
procreated of the blood royal of this realm: secondly, Calvin the plaintiff naturalized by
procreation and birth-right, since the descent of the Crown of England: thirdly, ligeance
and obedience of the subject to the sovereign, due by the law of nature: fourthly,
protection and government due by the law of nature: fifthly, this case, in the opinion of
divers, was more doubtful in the beginning, but the further it proceeded, the clearer and
stronger it grew; and therefore the doubt grew from some violent passion, and not from
any reason grounded upon the law of nature, quia quanto magis violentus motus (qui fit
contranaturam) appropinquat ad suum finem, tanto debiliores et tardiores sunt ejus motus;
sed naturalis motus, quanto magis approprinquat ad suum finem, tanto fortiores et
velociores sunt ejus motus. Hereby it appeareth how weak the objection grounded upon
the rule of (a) quanto du jura concurrunt in, und, persond, &c. is: for that rule holdeth not
in personal things, that is, when two persons are necessarily and inevitably required by
law, as in the case of an alien born there is; and therefore no man will say that now the
King of England can make war or league with the King of Scotland, et sic de cæteris; and
so in case of an alien born, you must of necessity have two several ligeances to two
several persons. And to conclude this point concerning laws, non adservatur diversitas
regnor sed regnant', nonpatriarum, sed patrum patriar', non coronarum, sed coronatorum,
non regum municipalium, sed regum majestatum. And therefore thus were directly and
clearly answered as well the objections drawn from the severalty of the kingdoms, seeing
there is but one head of both, and the postnati and us joined in ligeance to that one head,
which is copula et tanquam oculus of this case; as also the distinction of the laws, seeing
that ligeance of the subjects of both kingdoms, is due to their sovereign by one law, and
that is the law of nature.
            For the third, it is first to be understood, that as the law hath wrought four unions,
so the law doth still make four separations: The first union is of both kingdoms under one
natural liege Sovereign King, and so acknowledged by the Act of [7-Coke-15 a]
Parliament of recognition. The 2d. is an union of ligeance and obedience of the subjects
of both kingdoms, due by the law of nature to their sovereign: and this union doth suffice
to rule and overrule the case in question: and this in substance is but a uniting of the
hearts of the subjects of both kingdoms one to another, under one head and sovereign.
The 3d. union is an union of protection of both kingdoms, equally belonging to the
subjects of either of them: and therefore the two first arguments or objections drawn from
two supposed several ligeances were fallacious, for they did disjungere conjungenda. The
4th union and conjunction is of the three lions of England, and that one of Scotland,
united and quartered in one escutcheon.
            Concerning the separations yet remaining: 1. England and Scotland remain
several and distinct kingdoms. 2. They are governed by several judicial or municipal
laws. 3. They have several distinct and separate Parliaments. 4. Each kingdom hath
several nobilities: for albeit a postnatus in Scotland, or any of his posterity, be the heir of
a nobleman of Scotland, and by his birth is legitimated in England, yet he is none of the
(a) peers or nobility of England; for his natural ligeance and obedience, due by the law of
nature, maketh him a subject and no alien within England: but that subjection maketh him
not noble within England; for that nobility had his original by the King's creation, and not
of nature. And this is manifested by express authorities, grounded upon excellent reasons
in our books. If
 
7 Coke Report 15 b, 77 ER p395
baron, viscount, earl, marquis, or duke of England, bring any action, real or personal, and
the defendant pleadeth in abatement of the writ that he is no baron, viscount, earl, &c.
and thereupon the demandant or plaintiff taketh issue; this issue shall not be tried by jury,
but by the (a) record (G) of Parliament, whether he or his ancestor, whose heir he is, were
72
called to serve there as a peer, and one of the nobility of the realm. And so are our books
adjudged in 22 Ass. 24-. 48 Edw. 3. 30. 35 H. 6. 40. 20 Eliz. Dyer. 360. Vide in the Sixth
Part of my Reports, in The Countess of Rutland's case. So as the man, that is not de jure a
peer, or one of the nobility, to serve in the Upper House of the Parliament of England, is
not in the legal proceedings of law accounted noble within England. And therefore if a
countee of France or Spain, or any other foreign kingdom, should come into England, he
should not here sue, or be sued by the name of countee, &c. for that he is none of the
nobles that are members of the [7-Coke-15 b] Upper House of the Parliament of England;
and herewith agree the book-cases of (b) 20 Ed. 4. 6. a. b. and I1 Ed. 3. tit. Bre. 473. like
law it is, and for the same reason, of an earl or baron of Ireland, he is not any peer, or of
the nobility of this realm: and herewith agreeth the book in 8 R. tit. (c) Proces pl. Ultim';
where in an action of debt, process of outlawry was awarded against the Earl of Ormond
in Ireland; which ought not to have been, if he had been noble here. Vide Dyer (d) 20
Eliz. 360.
            But yet there is a diversity in our books worthy of observation; for the highest and
lowest dignities are universal: for if a King of a foreign nation come into England, by the
leave of the King of this realm (as it ought to be) in this case he shall sue and be sued by
the name of a King; and herewith agreeth 11 E. 3. tit. Br. (e) 473. where the case was,
that Alice, which was the wife of R. de 0. brought a writ of dower against John Earl of
Richmond, and the writ was  præcip. Johann' Comiti Richmondite custodi terr' et hæredis
of William the son of R. de. 0. the tenant pleaded that he is duke of Britain, not named
duke, judgment of the writ? But it is ruled that the writ was good; for that the dukedom of
Britain was not within the realm of England. But there it is said, that if a man bring a writ
against Edward (f) Baliol, and name him not King of Scotland, the writ shall abate for the
cause aforesaid. And hereof there is a notable precedent in Fleta, lib. 2. cap. 3. see. 9.
where treating of the jurisdiction of the King's Court of Marshalsea it is said et hæc
omnia ex officio' suo licite facere poterit (ss seneschal' aul' hospitii Regis) non obstante
alicujus libertate, etiam in alieno regno dum tamen reus in hospitio Regis poterit inveniri
secundum quod contigit Paris. anno 14 Ed. 1. de Engelramo de Nogent capto in hospitio
Regi 3 Angl' (ipso rege tunc apud Parisiam existente) cum discis argenti furatis recenter
su er facto, rege Franc' tunc presentee et unde licet Curia Regis Franc' de præd' latrone
per castellanum, Paris petita fuerit, habitis hinc et inde tractatibus in Consilio Regis
Franc', tandem consideratumfitit; quod Rex Angl' illa regia prærogativa, et hospitii sui
privilegio uteretur, et ganderet, qui coram Roberto Fitz-John milite tunc hospitii Regis
Angl' seneschallo de latrocinio convidus, per considerationem, ejus cur, fuit (a) suspensus
in patibulo sancti Germani de pratis. Which proveth, that though the King be in a foreign
kingdom, yet he is judged in law a King there. The other part of the said diversity is
proved by the book-ease in 20 (b) E. 4. fol. 6. a. b. where, in a writ of debt brought by Sir
J. Douglas, Knight, against Elizabeth Molford, the defendant, demanded judgment of the
writ; for that [7-Coke-16 a] the plaintiff was an earl of Scotland (H), but not of England;
and that our
 
7 Coke Report 16 b, 77 ER p396
Sovereign Lord the King had granted unto him safe conduct, not named by his name of
dignity, judgment of the writ, &c. And there Justice Littleton giveth the rule: the
plaintiff(saith be) is an earl in Scotland, but not in England; and if our Sovereign Lord the
King grant to a duke of France a safe conduct to merchandize, and enter into his realm, if
the duke cometh and bringeth merchandize into this land, and is to sue art action here he
ought not to name himself duke; for he is not a duke in this land, but only in France. And
these be the very words of that book-case; out of which I collect three things. First, that
the plaintiff was named by the name of a knight, wheresoever be received that degree of
dignity. Vide (c) 7 H. 6. 14 b. accord. 2. That an earl of another nation or kingdom is no
earl (to be so named in legal proceedings) within this realm: and herewith agreeth the
book of (d) 11 Ed. 3. The Earl of Richmond's case before recited. 3. That albeit the King
73
by his letters patent of safe conduct do name him duke, yet that appellation maketh him
no duke, to sue or to be sued by that name within England: so as the law in these points
(apparent in our books) being observed and rightly understood, it appeareth how
causeless their fear was that the adjudging of the plaintiff to be no alien should make a
confusion of the nobilities of either kingdom.
            Now are we in order come to the fourth noun (which is the fourth general part),
alienigena; wherein six things did fall into consideration. 1. Who was alienigena, an alien
born by the laws of England. 2. How many kinds of aliens born there were. 3. What
incidents belonged to an alien born. 4. The reason why an alien is not capable of
inheritance or freehold within England. 5. Examples, resolutions, or judgments reported
in our books in all successions of ages, proving the plaintiff to be no alien. 6.
Demonstrative conclusions upon the premises, approving the same.
            1. An alien is a subject that is born out of the ligeance of the King, and under the
ligeance of another; and can have no real or personal action for or concerning land: but in
every such action the tenant or defendant may plead that he was born in such a country
which is not within ligeance of the King; and demand Judgment, if he shall be answered.
And this is in effect the description which Littleton himself maketh, lib. 2. cap. 14.
Villen. fol. 43. Alienigena est alienæ gentis seu alienæ ligeantice, qui etiam [7-Coke-16
b] dicitur peregrinus, alienus, exoticus, extraneos, &c. Extraneus est subditus, qui extra
terram, i, e. potestatem Regis natus est. And the usual and right pleading of an alien born
doth lively and truly describe and express what be 1s. And therein two things are to be
observed. 1. That the most usual and best pleading in this case, is, both exclusive and
inclusive, viz. extra ligeantiam domini Regis, &c. et infra ligeantiam alterius Regis, as it
appeareth in (a) 9 Ed. 4. 7. b. Book of Entries, fol. 244, &c. which cannot possibly be
pleaded in this case, for two causes. 1. For that one King is sovereign of both kingdoms.
2. One ligeance is due by both to one sovereign; and in case of an alien there must of
necessity be several Kings and several ligeances. Secondly, no pleading was ever extra
regnum, or extra legem, which are circumscribed to place, but extra ligeantiam, which (as
it hath been said) is not local or tied to any place.
            It appeareth by Bracton, lib. 3. tract. 2. c. 15. fol. 134. that (b) Canutus the Danish
King, having settled himself in this kingdom in peace, kept notwithstanding (for the
better continuance thereof) great armies within this realm. The peers and nobles of
England, distasting this government by arms and armies, odimus accipitrem quia semper
vivit in armis, wisely and politically persuaded the King, that they would provide for the
safety of him and his people, and yet his armies, carrying with them many
inconveniencies, should be withdrawn: and therefore offered that they would consent to a
law, that whosoever should kill an alien, and be apprehended, and could not acquit
himself, he should be subject to justice: but if the manslayer fled, and could not be taken,
then the town where the man was slain should forfeit sixty-six
 
7 Coke Report 17 a, 77 ER p397
marks unto the King; and if the town were not able to pay it, then the hundred should
forfeit and pay the same unto the King's treasure: whereunto the King assented. This law
was penned quicunque occiderit Francigenam, &c; not excluding other aliens, but putting
Francigena, a Frenchman, for example, that others must be like unto him, in owing
several ligeance to a several sovereign, that is, to be extra ligeantiam Regis Angl', and
infra ligeantiam alterius Regis. And it appears before, out of Bracton and Fleta, that both
of them use the same example (in describing of an alien) ad fidem Regis Franciæ. And it
was holden, that except it could be proved that the party slain was an Englishman, that he
should be taken for an alien: and this was called Englesherie, Englesheria, that is, a proof
that the party slain was an Englishman. (Hereupon [7-Coke-17 a] Canutu's presently
withdrew his armies, and within a while after lost his Crown, and the same was restored
to his right owner.) The said law of Englesherie continued until 14 Ed. 3. cap. 4. and then
the same was by Act of Parliament ousted and abolished. So amongst the laws of William
74
the First, (published by Master Lambert, fol. 125.) omnis Francigena (there put for
example as before is said, to express what manner of person alienigena should be) qui
Tempore, Edvardi propinqua nostri fuit particeps legum et consuetudinem Anglorum
(that is made denize") quod dicunt ad scot et lot persolvat secundum legem Anglorum.
            Every man is either alienigena, an alien born, or subditus, a subject born. Every
alien is either a friend that is in league, &c. or an enemy that is in open war, &c. Every
alien enemy is either pro tempore, temporary for a time, or perpetuus, perpetual, or
specialiter permissus, permitted especially. Every subject is either natus, born, or datus,
given or made: and of these briefly in their order. An alien friend, as at this time, a
German, a Frenchman, a Spaniard, &c. (all the Kings and princes in Christendom being
now in league with our sovereign: but a Scot being a subject, cannot be said to be a
friend, nor Scotland to be solum amici) may by the common law have, acquire, and get
within this realm, by gift, trade, or other lawful means, any treasure, or (a)        goods
personal whatsoever, as well as an Englishman, and may maintain any (b) action for the
same: but (c) but lands within this realm, or houses (but for their necessary habitation
only) alien friends cannot acquire, or get, nor maintain any action real or personal, for
any land or house, unless the house be for their necessary habitation. For if they should
be disabled to acquire and maintain these things, it were in effect to deny unto them trade
and traffic, which is the life of every island. But if this alien become an enemy, (as all
alien friends may) then is he utterly disabled to maintain any action, or get any thing
within this realm. And this is to be understood of a temporary alien, that being an enemy
may be a friend, or becoming a friend may be an enemy. But a perpetual enemy (though
there be no wars by fire and sword between them) cannot maintain any action, or get any
thing within this realm. All infidels are in law perpetui (d) inimici, perpetual enemies (for
the law presumes not that they will be converted, that being remota potentia, a remote
possibility) for between them, as with the devils, whose subjects they be, and the
Christian, there is perpetual [7-Coke-17 b] hostility, and can be no (a) peace; for as the
Apostle saith, 2 Cor. 6. 15. Quæ autem conventio Christi ad Belial, aut quæ, pars fideli
cum infideli, and the law saith, Judæo Christianum nullum serviat mancipium, nefas enim
est quem, Christus redemit blasphemum, Christi in servitutis vinculis detinere. Register
282. Infideles sunt Christi et Christianorum inimici. And herewith agreeth the book in 12
H. 8. fol. 4. where it is holden that a Pagan cannot have or maintain any action at all (I).
            And upon this ground there is a diversity between a conquest of a kingdom of a
 
7 Coke Report 18 a, 77 ER p398
Christian King, and the conquest of a kingdom of an infidel; for if a King come to a
Christian kingdom by conquest, seeing that he hath vilæ et necis potestatem, he may at
his pleasure alter and change the laws of that kingdom: but until be doth make an
alteration of those laws the ancient laws of that kingdom remain (K). But if a Christian
King should conquer a kingdom of an infidel, and bring them under his subjection, there
ipso facto the laws of the infidel are abrogated, for that they be not only against
Christianity, but against the law of God and of nature, contained in the decalogue; and in
that case, until certain laws be established amongst them, the King by himself, and such
Judges as he shall appoint, shall judge them and their causes according to natural equity,
in such sort as Kings in ancient time did with their kingdoms, before any certain
municipal laws were given, as before hath been said. But if a King hath a kingdom by
title of descent, there seeing by the laws of that kingdom he doth inherit the kingdom, he
cannot change those laws of himself, without consent of Parliament. Also if a King hath a
Christian kingdom by conquest, as King Henry the Second had Ireland, after King John
had given unto them, being under his obedience and subjection, the laws of England for
the government of that country, no succeeding King could alter the same without
Parliament. And in that case, while the realm of England, and that of Ireland were
governed by several laws, any that was born in Ireland was no alien to the realm of
England. In which precedent of Ireland three things are to be observed. 1. That then there
75
had been two descents, one from Henry the Second to King Richard the First, and from
Richard to King John, before the alteration of the laws. 2. That albeit Ireland was a
distinct, dominion, yet the title thereof being by conquest, the same by judgment of law
might by express words be bound by Act of the Parliament of England. 3. That albeit
no[7-Coke-18 a] reservation were in King John's charter, yet by judgment of law a writ of
error did lie in the King's Bench in England of an erroneous Judgment in the King's
Bench of Ireland. Furthermore, in the case of a conquest of Christian kingdom, as well
those that served in wars at the conquest as those that remained at home for the safety and
peace of their country, and other the King's subjects, as well antenati as postnati, are
capable of lands in the kingdom or country conquered, and may maintain any real action,
and have the like privileges and benefits there, as they may have in England.
            The third kind of enemy is, inimicus permissus, an enemy that cometh into the
realm by the King's safe conduct, of which you may read in the Register, fol. 25. Book of
Entries, Ejectione Firmæ, 7, 32 H. 6. 23. b. &c. Now what a subject born is, appeareth at
large by that which hath been said de ligeantia: and so likewise de
(K)        Memorandum 9th of August, 1722, it was said by the Master of the Rolls to have
been determined by the Lords of the Privy Council, upon an appeal to the King in
Council from the foreign plantations:-
1st. That if there be a new and uninhabited country found out by English subjects, as the
law is the birthright of every subject, so wherever they go, they carry their law with them,
and therefore such new found country is to be governed by the laws of England, though
after such country is inhabiter by the English, Acts of Parliament made in England,
without naming the foreign plantations, will not bind them; for which reason it has been
determined that the Statute of Frauds and Perjuries, which requires three witnesses, and
that these should subscribe in the testator's presence in the case of a devise of a. land,
does not bind Barbadoes: but that
2ndly. Where the King of England conquers a country, it is a different consideration; for
there the conqueror, by saving the lives of the people conquered, gains a right and-
property in such people, in consequence of which he may impose upon them what law be
pleases: but
3dly. Until such laws given by the conquering prince, the laws and customs of the
conquered country shall hold place, unless where these are contrary to our religion, or
enact any thing that is malum in se, or are silent; for in all such cases the laws of the
conquering Country shall prevail. 2 Peere Williams, 75. et Vid. Collett v Lord Keith, 2
East 260. Blankard v Galdy, 4 Mod. 225. SC.2 Salk. 411. Attorney-General v. Stewart, 2
Meriv. 159.
 
7 Coke Report 18 b, 77 ER p399
subdito dato, of a donaison: for that is the right name, so called, because his legitimation
is given unto him; for if you derive denizen from deins nee, one born within the
obedience or ligeance of the King, then such a one should be all one with a naturalborn
subject. And it appeareth before out of the laws of King W. 1. of what antiquity the
making of denizens by the King of England hath been.
            3. There be regularly (unless it be in special cases) three incidents to a subject
born. 1. That the parents be under the actual obedience of the King. 2. That the place of
his birth be within the King's dominion. And, 3. The time of his birth is chiefly to be
considered; for he cannot be a subject born of one kingdom that was born under the
ligeance of a King of another kingdom, albeit afterwards one kingdom descend to the
King of the other. For the first, it is termed actual obedience, because, though the King f'
England hath absolute right to other kingdoms or dominions, as France, Aquitai,
Normandy, &c. yet seeing the King is not in actual possession thereof, none born there
since the Crown of England was out of actual possession thereof, are subjects to the King
of England. 2. The place is observable, but so as many times ligeance or obedience
without any place within the King's dominions may make a subject born, but any place
76
within the King's dominions may make a subject born, but any place within the King's
dominions without obedience can never produce a natural subject. And therefore if any of
the King's ambassadors in foreign nations, have children there of their wives, being
English women, by the common laws of England they are natural-born subjects, and yet
they are born out-of the King's dominions. But if enemies should come into any of the
King's dominions, and surprise any castle or fort, and [7-Coke-18 b] possess the same by
hostility, and have issue there, that issue is no subject to the King, though he be born
within his dominions, for that he was not born under the King's ligeance or obedience.
But the time of his (a) birth is of the essence of a subject born; for he cannot be a subject
to the King of England, unless at the time of his birth he was under the ligeance and
obedience of the King. And that is the reason that antenati in Scotland (for that at the time
of their birth they were under the ligeance and obedience, of another King) are aliens
born, in respect of the time of their birth.
            4. It followeth next in course to set down the reasons wherefore an alien born is
not capable of inheritance within England, and that he is not for three reasons. 1. The
secrets of the realm might thereby be discovered. 2. The revenues of the realm (the
sinews of war, and ornament of peace,) should be taken and enjoyed by strangers born. 3.
It should tend to the destruction of the realm. Which three reasons do appear in the statute
of 2 H. 5. cap and 4 H. 5. cap ultimo. But it may be demanded, wherein doth that
destruction consist; whereunto it is answered; first, it tends to destruction tempore belli;
for then strangers might fortify themselves in the heart of the realm, and be ready to set
fire on the commonwealth, as was excellently shadowed by the Trojan horse in Virgil's
Second Book of his Aneid, where a very few men in the heart of the city did more
mischief in a few hours, than ten thousand men without the walls in ten years. Secondly
tempore pacis for so might many aliens born get a great part of the inheritance and
freehold of the realm, whereof there should follow a failure of justice (the supporter of
the commonwealth) for that aliens born cannot be returned of juries (a) for the trial of
issues between the King and the subject, or between subject and subject. And for this
purpose, and many other, (see a charter worthy of observation) of King Ed. 3. written to
Pope Clement, datum apud Westm 26. die Sept. ann regni nostri Franciæ 4 regni vero
Angliæ 17.
            5. Now are we to come to the examples, resolutions, and judgments of former
times; wherein two things are to be observed, first, how many cases in our books do over-
rule this case in question for ubi (b) eadem ratio ibi idem jus, et de similibus idem est
judicium. 2. That for want of an express text of law in terminis terminantibus and of
examples and precedents in like cases (as was objected by some) we are driven to
determine the question by natural reason: for it was said, si cesset lex scripta id custodiri
[7-Coke-19 a] oportet quod moribus et consuetudine inductum est, et si qua in re hoc de
cerit, recur-
 
7 Coke Report 20 a, 77 ER p400
rendum est ad rationem. But that receiveth a threefold answer: - First, That there is no
such rule in the common or civil law: but the true rule of the civil law is, lex scripta si
cesser, id custodiri oporlet quod moribus et consuetudine inductum est, et si qua in re hoc
defecerit, tune id quod proximum et consequens ei est, et si id non appareat, tunc jus quo
urbs Romana utitur, servari oportel.' Secondly, If the said imaginative rule be rightly and
legally understood, it may stand for truth: for if you intend ratio for the legal and
profound reason of such as by diligent study and long experience and observation are so
learned in the laws of this realm, as out of the reason of the same they can rule the case in
question, in that sense the said rule is true: but if it be intended of the reason of the wisest
man that professeth not the laws of England, then (I say) the rule is absurd and
dangerous; for (a) cuilibet in suit, arte perito est credendum et quod quisque (b) norit in
hoc se exerceat. Et omnes, prudentes illa admittere solent uce, probantur iis qui in suæ
77
parle bene versati sunt, Arist. 1. Topicorum cap. 6. Thirdly there be multitudes of
examples, precedents, judgments, and resolutions in the laws of England, the true and
unstrained reason whereof doth decide this question; for example the dukedom of
Acquitain, whereof Gascoign was parcel, and the earldom of Poitiers, came to King
Henry the Second by the marriage of Eleanor, daughter and heir of William Duke of
Acquitain, and Earl of Poitiers, which descended to Rich. I. Hen. 3. Ed. I. Ed. 2. Ed. 3.
&c. In 27 lib. (c) Ass pl. 48. in one case there appear two judgments and one resolution to
be given by the Judges of both Benches in this case following. The possessions of the
Prior of Chelsey in the time of war were seised into the Kin-'s hands, for that the prior
was an alien born: the prior by petition of right sued to the King, and the effect of his
petition was, that before he came Prior of Chelsey, he was Prior of Andover, and whilst
he was prior there, his possessions of that priory were likewise seised for the same cause
supposing that he was an alien born; whereupon he sued a former petition, and alleged
that he was born in Gascoign within the ligeance of the King: which point being put in
issue and found by jury to be true, it was adjudged that he should have restitution of his
possessions generally without mentioning of advowsons. After which restitution, one of
the [7-Coke-19 b] said advowsons became void, the prior presented, against whom the
King brought a quare impedit, wherein the King was barred; and NI this was contained in
the latter petition. And the book saith, that the Earl of Arundel, and Sir Guy of B. came
into the Court of Common Pleas, and demanded the opinion of the Judges of that Court
concerning the said case, who resolved, that upon the matter aforesaid the King had no
right to seize. In which case, amongst many notable points, this one appeareth to be
adjudged and resolved, that a man born in Gascoin under the King's ligeance, was no
alien born, as to lands land possessions within the realm of England, and yet England and
Gascoin were several and distinct countries. 2. Inherited by several and distinct titles. 3.
Governed by several and distinct municipal laws, as it appeareth amongst the records in
the Tower, Rot. Vasc. 10. Ed. 1. Nam. 7. 4. Out of the extent of the Great Seal of
England, and the jurisdiction of the Chancery of England. 5. The like objection might be
made for default of trial, as hath been made against the plaintiff And where it was said
that Gascoin was no kingdom, and therefore it was not to be matched to the case in hand,
it was answered, that this difference was without a diversity as to the case in question; for
if the plea in the case at the Bar be good, then without question the prior had been an
alien; for it might have been said, (as it is in the case at the Bar) that he was born extra
ligeantiam Regis regni sui Angliæ, et infra ligeantiam dominii sui Vasconice, and that
they were several dominions, and governed by several laws: but then such a conceit was
not hatched, that a King having several dominions should have several ligeances of his
subjects. Secondly, it was answered, that Gascoin was sometime a kingdom, and likewise
Millan, Burgundy, Bavaria, Bretagne, and others were, and now are become, dukedoms.
Castile, Arragon, Portugal, Barcelona, &c. were sometime earldoms, afterwards
dukedoms, and now kingdoms. Bohemia and Poland were
 
7 Coke Report 20 a, 77 ER p401
sometime dukedoms, and now kingdoms; and (omitting many other, and coming nearer
home,) Ireland was before 32 H. 8. a lordship; and now is a kingdom, and yet the King of
England was as absolute a prince and sovereign when he was Lord of Ireland, as now
when he is styled King of the same. 10 Ed. 3. 41. an exchange was made between an
Englishman and a Gascoin, of lands in England and in Gascoin; ergo, the Gascoin was no
alien, for then had he not been capable of lands in England, 1 H. 4. 1. the King brought a
writ of right of ward against one Sybil, whose husband was exiled into Gascoin; [7-Coke-
20 a] ergo Gascoin is no parcel or member of England, for exilium est patrice privatio,
natalis soli, mutation legum nativarum amissio; 4 E. 3. 10 b. the King directed his writ
out of Chancery under the Great Seal of England, to the Mayor of (a) Bordeaux, (a city in
Gascoin) then being under the King's obedience, to certify, whether one that was
outlawed here in England, was at that time in the King's service under him in obsequio
78
Regis: whereby it, appeareth that the King's writ did run into Gascoin, for it is the trial
that the common law hath appointed in that case. But as to other cases, it is to be
understood that there be two kinds of writs brevia mandatoriae tremedialia, etbrevia
mandatoria et non remedialia: brevia mandatoria et remedialia, as writs of right, of
formedon, &c. of debt, trespass, &c. and shortly all writs real and personal, whereby the
party wronged is to recover somewhat, and to be remedied for that wrong was offered
unto him, are returnable or determinable in some Court of Justice within England, and to
be served and executed by the sheriffs, or other ministers of justice within England, and
these cannot by any means extend into any other kingdom, country, or nation, though that
it be under the King's actual ligeance and obedience. But the other kind of writs that are
mandatory, and not remedial, are not tied to any place, but do follow subjection and
ligeance, in what country or nation soever the subject is, as the King's writ to command
any of his subjects residing in any foreign country to return into any of the King's own
dominions, sub fide et ligeantia quibus nobis tenemini. And so are the aforesaid
mandatory writs cited out of the Register of protection for safety of body and goods, and
requiring that if any injury be offered, that the same be redressed according to the laws
and customs of that place. Vide le Reg fol. 26. Stamford Prærog cap. 12. fol. 39. saith,
that men born in Gascoin are inheritable to lands in England. This doth also appear by
divers Acts of Parliament: for by the whole Parliament, 39 E. 3. cap. 16. it is agreed, that
the Gascoins are of the ligeance and subjection of the King. Vide 42 Ed. 3. cap. 2. and 28
H. 6. cap. 5. &c.
            Guienne was another part of Aquitain, and came by the same title; and those of
Guienne were by Act of Parliament in 13 H. 4. not imprinted, ex Rot. Parliament eodem
anno, adjudged and declared to be no aliens, but able to possess and purchase, &c. lands
within this realm. And so doth Stamford take the law. Prærog c. 12. f. 39. [7-Coke-20 b]
And thus much of the dukedom of Aquitain, which (together with the earldom of
Poitiers) came to King Henry the Second (as hath been said) by marriage, and continued
in the actual possession of the Kings of England by ten descents, viz. from the first year
of King Henry the Second, unto the two and thirtieth year of King Henry the Sixth, which
was upon the very point of three hundred years, within which duchy there were (as some
write) four archbishopries, 24 bishoprics, 15 earldoms, 202 baronies, and above a
thousand captainships and bailliwicks; and in all this long time neither book case nor
record can be found wherein any plea was offered to disable any of them that were born
there, by foreign birth, but the contrary hereof directly appeareth by the said book case of
(a) 27 lib. Ass. 48.
            The Kings of England had sometimes Normandy under actual ligeance and
obedience. The question is then, whether men born in Normandy, after one King had
them both, were inheritable to lands in England; and it is evident by our books that they
were: for so it appeareth by the declaratory Act of 17 Ed. 2. de Prærog. Reg e. 12. that
they were inheritable to, and capable of lands in England; for te purview of that statute is
quod Rex habebit escaelas de terris Normannorum, &c. Ergo Normans might have lands
in England, et hoc similiter intelligendum est, si aliqua hæreditas descendat alicui nato in
partibus transmarinis, &c. Whereby it appeareth,
 
7 Coke Report 21 a, 77 ER p402
that they were capable of lands within England by descent. And that this Act of 17 E. 2.
was but a declaration of the common law, it appeareth both by Bracton who (as it hath
been said) wrote in the reign of Henry the Third, lib. 3. tract. 2. c. 1. f. 116. and by
Britton who wrote in 5 E. T. c. 18. that all such lands as any Norman had either by
descent or purchase, escheated to the King for their treason, in revolting from their
natural liege lord and sovereign. And therefore Stamford Prærog cap. 12. fol. 39.
expounding the said statute of 17 E. 2. cap. 12. concludeth, that by that chapter it should
appear (as, if he had said, it is apparent without question) that all men born in Normandy,
Gascoin, Guienne, Anjou, and Britain, (whilst they were under actual disobedience) were
79
inheritable within this realm as well as Englishmen. And the reason thereof was, for that
the were one ligeance due to one sovereign * And so much (Omitting nine other
authorities) for Normandy: saving I cannot let pass the isles of Guernsey and Jersey, parts
and parcels of the dukedom of Normandy, yet remaining under the actual ligeance and
obedience of the King, I think no man will doubt, but those that are [7-Coke-21 a] born in
Guernsey and Jersey (though those isles are no parcel of the realm of England, but
several dominions enjoyed by several titles, governed by several laws) are inheritable,
and capable of any lands within the realm of England, 1 E. 3. fol. 7. Commission to
determine the title of lands within the said isles, according to the laws of the isles; and
Mich. 41 E. 3. in the Treasury, Quia negotium, præd' nec aliqua alia negotia de insul‚,
præd' emergentia non debent terminari nisi secundum legem insulæ præd',&c. And the
Register fol. 22. Rex fidelibus suis de Jernsey et Gersey. King William the First brought
this dukedom of Normandy with him, which by five descents continued under the actual
obedience of the Kings of England; and in or about the 6th year of King John, the Crown
of England lost the actual possession thereof, until King Henry the Fifth recovered it
again, and left it to King Henry the Sixth, who lost it in the 28th of his reign; wherein
were (as some write) one archbishopric and six bishoprics, and an hundred strong towns
and fortresses, besides those that were wasted in war. Maud the Empress, the only
daughter and heir of Henry the First, took to her second husband Jeffrey Plantagenet, Earl
of Anjou, Tourain, and Mayne, who had issue King H. 2. to whom the said earldom by
just title descended, who, and the Kings that succeeded him, stiled themselves by the
name of comes Andeguv', &c. until King E.3. became King of all France; and such as
were born within that earldom, so long as it was under the actual obedience of the King
of England, were no aliens, but natural-born subjects; and never any offer made, that we
can find, to disable them for foreign birth. But leave we Normandy and Anjou, and speak
we of the little, but yet ancient and absolute kingdom of the Isle of Man *, as it appeareth
by diverse ancient and authentic records; as taking one for many. Artold King of Man
sued to King H. 3. to come into England to confer with him, and to perform certain things
which were due to King H. 3. Thereupon King H. 3. 21 Decemb ann regn sui 34, at
Winchester, by his letters patent' gave licence to Artold King of Man, as followeth: Rex
omnibus salutem. Sciatis, quod licentiam, dedimus, &c. Artoldo Regi de Man veniendo
ad nos in, Angl', ad loquend' nobise' et ad faciend' nobis quod facere debet; et ideo vobis
mandamus quod ei Regi in veniendo ad nos iu Angl', vel ibi morando, vel inde redeundo
nullum, faciat' ant fieri permittatis damnum, injur', molestiam, aut gravamen, vel etiam
hominib' suis quos secure ducet et si aliquid eis forisfact' fuerit, id eis sine dilat faciat'
emendari. - In cujus, &c. duratur' usque ad fast' S. Mich. Wherein [7-Coke-21 b] two
things are to be observed; 1. That seeing that Artold King of Man sued for a licence in
this case to the King, it proveth him an absolute Kizig'; for that a monarch or an absolute
prince cannot come into England without licence of the King, but any subject being in
league, may come into this realm without licence. 2. That the King in his licence doth
style him by the name of a king. It was resolved in 11 H. 8. that where an office was
found after the decease of Thomas Earl of Derby, and that he died seised,
 
7 Coke Report 22 a, 77 ER p403
&c. of the Isle of Man, that the said office was utterly void , for that the Isle of Man,
Normandy, Gascoign, &c. were out of the power of the Chancery, and governed by
several laws; and yet none will doubt, but those that are born within that isle are capable
and inheritable of lands within the realm of England. Wales* was some time a kingdom,
as it appeareth by 19 H. 6. fol. 6. and by the Act of Parliament of 2 H. 5. c. 6. but whilst it
was a kingdom, the same was holden, and within the fee, of the King of England; and this
appeareth by our books, Fleta, lib. I. cap. 16. 1 E. 3. 14. 8 E. 3. 59. 13 E. 3. tit. Jurisdict'.
10 H. 4. 6. Plow. Com. 368. And in this respect in divers ancient charters, Kings of old
time styled themselves in several manners, as King Edgar, Britanniæ Ba(mXcy
Etheldredus, totius Albio,'Dei providenti‚ Imperator; -Edredus Magn' Britann' Monarcha,
80
Which among many other of like nature I have seen. But by the statute of 12 E. 1. Wales
was united and incorporated into England, and parcel of England in possession; and
therefore it is ruled in 7 H. 4. f. 13. a. that no protection doth lie quia moratur in Wallia,
because Wales is within the realm of England . And where it is recited in the Act of 27 H.
8. that Wales was ever parcel of the realm of England, it is true in this sense, viz. that
before 12 E. 1. it was parcel in tenure, and since it is parcel of the body of the realm. And
whosoever is born within the fee of the King of England, though it be in another
kingdom, is a natural-born subject, and capable and inheritable of lands in England, as it
appeareth in Plow. Com. 126. And therefore those that were born in Wales before 12 E.
1. whilst it was only holden of England, were capable and inheritable of lands in England.
            Now come we to France and the members thereof, as Callice, Guynes, Tournay,
&c. which descended to King Edward the Third, as son and heir to Isabel, daughter and
heir to Philip le Beau, King of France. Certain it is, whilst [7-Coke-22 a] King Henry the
Sixth had both England and the heart and greatest part of France under his actual ligeance
and obedience (for he was crowned King of France in Paris), that they that were then
born in those parts of France, that were under actual ligeance and obedience, were no
aliens, but capable of and inheritable to lands in England. And that is proved by the writs
in the register, fol. 26. cited before. But in the inrolment of letters patent of denization in
the Exchequer, int' originalia, ann. 11 H. 6. with the Lord Treasurer's remembrancer was
strongly urged and objected; for (it was said) thereby it appeareth, that King H. 6. in anno
" of his reign, did make denizen one Reynel born in France; whereunto it was, answered,
that it is proved by the said letters patent, that he was born in France before King Henry
the Sixth had the actual possession of the Crown of France, so as he was antenatus; and
this appeareth by the said letters patent whereby the King granteth, that Magister
Johannes Beynel serviens noster, &c. infra regnum nostrum Franc' oriundus pro termino
vilæ suæ sit ligeus noster, et eodem modo teneatur sicut verus et fidelis noster infra
regnum Angl' oriundus, ac quod ipse terras infra regnum nostrum. Angl' seu alia dominia
nostra per quirere possit et valeat. Now if that Reynel had been born since Henry the
Sixth had the quiet possession of France (the King being crowned King of France about
one year before), of necessity be must be an infant of very tender age, and then the King
would never have called him his servant, nor made the patent (as thereby may be
collected) for his service, nor have called him by the name of Magister Johannes Beynel:
but without question he was antenatus, born before the King had the actual and real
possession of that Crown.
            Calais is a part of the kingdom of France, and never was parcel of the kingdom of
England, and the Kings of England enjoyed Calais * in and from the reign of King
Edward the Third, until the loss thereof in Queen Mary's time, by the same title that they
had to France. And it is evident by our books, that those that were born in Calais were
capable and inheritable to lands in England, 42 E. 3. c. 10. Vide 21 H. 7.
 
7 Coke Report 22 b, 77 ER p404
33. b. 19 H. 6. 2 E. 4. 1. a. b. 39 H. 6. 39 a. 21 E. 4. 18 a. 28 H. 6. 3 b. By all which it is
manifest, that Calais being parcel of France was under the actual obedience and
commandment of the King, by consequent those that were born there were natural-born
subjects, and no aliens. Calais from the reign of King Edward 3. until the fifth year of
Queen Mary, remained under the actual obedience, of the King of England. [7-Coke-22
b] Guines also, another part of France, was under the like obedience to-King Henry the
Sixth, as appeareth by 31 H. 6. fol. 4. And Tournay was under the obedience of Henry the
Eighth, as it appeareth by 5 El. Dyer, fol. 224; for there it is resolved, that a bastard born
at Tournay, whilst it was under the obedience of Henry the Eighth, was a natural subject,
as an issue born within this realm by aliens. If then those that were born at Tournay,
Calais, &c. whilst they were under the obedience of the King, were natural subjects, and
no aliens, it followeth, that when the Kingdom of France (whereof those were parcels)
was under the King's obedience, that those that were then born there were natural subjects
81
and no aliens.
            Next followeth Ireland *, which originally came to the Kings of England by
Conquest: but who was the first conqueror thereof, hath been a question. I have seen a
charter made by King Edgar in these words: -Ego Edgarus Anglorum Bao-O'EVg,
omniumque insularum oceani, quæ Britanniam circumjacent, Imperator et Dominus,
ratias ago ipsi Deo omnipotenti Regi meo, qui meum imperium ampliavit et exaltavit
super regnum patrum meorum, &c. mihi Concessit jpropilia divinitas, cum Anglorum
imperio omnia regna insularum oceani, et cum suis ferocissimis Regibus usque
Norvegiam, maximam que partem Hibern', cum sud noblissim‚ civitate de Dublina,
Anglorum regno subjugare, qua propter et ego Christi gloriam, et laudem in regno meo
exaltare, et ejus servitium amplificare devotus disposui, &c. Yet for that it was wholly
conquered in the reign of Henry the Second the honour of the conquest of Ireland is
attributed to him, and his style was, Rex Angl' Dominus Hibern' Dux Normann' Dux
Acquittan' et Comes Andegay', King of England, Lord of Ireland, Duke of Normandy,
Duke of Aquitain, and Earl of Anjou*. That Ireland is a dominion separate and divided
from England, it is evident from our books, 20 H. 6. 8. Sir John Pilkington's case. 32 H.
6. 25. 20 Eliz. Dyer 360. Plow. Com. 360. And 2 R. 3. 12 a. Hibernia habet
Parliamentum, et faciunt leges, et nostra statuta, non ligant eos, quia non miltunt milites
ad Parliamentum (which is to be understood, unless they be especially named) sed
personæ eorum sunt subjecti Regis, sicut inhabitantes in Calesi‚, Gasconi‚, et Guyan.
Wherein it is to be observed, that the Irishman (as to subjection) is compared to men born
in Calais, Gascoin, and Guienne. Concerning their laws ex rotulis potentium de anno 11
Regis H. 3. there is a charter which that King made, beginning in these words, Rex, &c.
Baronibus, militibus, et omnibus libera tenentibus L. salutem, satis ut credimus [7-Coke-
23 a] vestra andivit discretion quod quando bono memoriæ (a) Johannes quondam Rex
Anglj' pater noster venit in Hiberniam, ipse duxit secum, viros discretos et legis perilos,
quorum communi consilio et ad instantiam Hibernensium statuil et precepit leges
Anglicanas in Hibern' ita quod leges easdem, in scripturas redactas reliquit sub sigalo,
suo ad Scaccarium Dublin'. So as now the laws of England became the proper laws of
Ireland; and therefore, because they have Parliaments holden there whereat they have
made divers particular laws concerning that dominion, as it appeareth in 20 H. 6. S. & 20
El. (b) Dyer 360. and for that they retain unto this day divers of their ancient customs, the
book in 20 H. 6. 8. holdeth, that Ireland is governed by laws and customs, separate and
diverse from the laws of England. A voyage royal may be made into Ireland. Vide (c) 11
H. 4. 7. a. & 7 (d) E. 4. 27. a. which proveth it a distinct dominion. And in anno 33 Reg.
El. it was resolved by all the Judges of England in the case of (e) O' Burke an Irishman,
who
 
7 Coke Report 23 b, 77 ER p405
had committed high treason in Ireland, that be, by the statute of 23 H. 8. c. 33. might be
indicted, arraigned, and tried for the same in England, according to the purview of that
statute: the words of which statute be, "That all treasons, &c. committed by any (f)
person out of the realm of England shall be from henceforth enquired of, &c." and they
all resolved (as afterwards they did also in Sir John Perrot's case) that Ireland was out of
the realm of England, and that treasons committed there were to be tried within England
by that statute. In the statute of 4 Hen. 7. cap. 24. of (g) Fines, provision is made for them
that be out of this land; and it is holden in Plow. Com in Stowel's case 375, that he that is
in Ireland is out of this land, and consequently within that proviso. Might not then the like
plea be devised as well against any person born in Ireland, as (this is against Calvin that
is a postnatus) in Scotland? For the Irishman is born extra ligeantiam Regis regni sui
Angl', &c. which be verba operative in the plea: but all men know that they are natural-
born subjects, and capable of and inheritable to lands in England. Lastly, to conclude this
part with (h) Scotland itself: in ancient time part of (i) Scotland (besides Berwick) was
within the power and ligeance of the King of England, as appeareth by our books (k) 42
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E. 3. 2. b. The Lord Beaumont's case, 11 E. 3. c. 2, &c. and by precedents hereafter
mentioned; and that part (though it were under the King of England's ligeance and
obedience) yet was it governed by the laws of Scotland. [7-Coke-23 b] Ex rotulis Scotiæ,
anno 11 Ed. 3. amongst the records in the Tower of London. Rex, &c. Constituimus Bich.
Talebot Justiciarium, nostrum vilice Berwici super Twedam, ac omnium aliarum,
terrarum nostrorum i n vartibus Scot', ad faciend' omnia et singula quæ ad officium
justiciarii pertinent, secundum lege met consuetudinem regni Scot'. And after anno 26 E.
3. ex eodem rot. Rex Henrico de Percey, Ricarda de Nevil, &c. Volumus et vobis et alteri
vestrum tenore præsentium Committimus et mandamus, quod homines nostri de Scot' ad
pacem et obedientiam nostram existentes, legibus, libertatibus, et liberis consuetudinibus,
quibus ipsi et antecessores sui tempore celebris memoriæ, Alexandri quondam Regis'
Scot' rationabiliter usi fuerunt uti ut gaudere deberent, Prout in quibusdam indentures, de
plenius dicitur contineri. And there is a writ in the Register 295 a. Dedimus potestatem
recipendi ad fidem et pacem nostram homines de Galloway. Now the case in (a) 42 Ed. 3.
2. b. (which was within sixteen years of the said grant, concerning the laws in 26 E. 3.)
ruleth it, that so many as were born in that part of Scotland that was under the ligeance of
the King were no aliens, but inheritable to lands in England; yet was that part of Scotland
in another kingdom, governed by several laws, &c. And if they were natural subjects in
that case, when the King of England had but part of Scotland, what reason should there
be why those that are born there, when the King hath all Scotland, should not be natural
subjects, and no aliens? So, likewise, (b) Berwick is no part of England, nor governed by
the laws of England; and yet they that have been born there, since they were under the
obedience of on; King, are natural-born subjects, and no aliens, as it appeareth in 15 R. 2.
cap. 7, &c. Vide (c) 19 H. 6. 35. b. & 39 H. 6. 39. a. And yet in all these cases and
examples, if this new devised plea had been sufficient, they should have been all aliens,
against so many judgments, resolutions, authorities, and judicial precedents in all
successions of ages. There were sometimes in England, whilst the beptarchy lasted, seven
several crowned Kings of seven several and distinct kingdoms; but in the end the West
Saxons Lot the monarchy, and all the other Kings melted (as it were) the crowns to make
one imperial diadem for the King of the West Saxons over all. Now when the whole was
under the actual and real ligeance and obedience of one King, were any that were born in
any of those several and distinct kingdoms aliens one to another? Certainly they being
born under the obedience of one King
 
7 Coke Report 24 a, 77 ER p406
and sovereign were all natural-born subjects, and capable of and inheritable unto any
lands in any of the said kingdoms.
            [7-Coke-24 a] In the holy history reported by St. Luke, ex dictamine Spiritus
Sancti, cap. 21 et 22 Act. Apostolorum, it is certain that St. Paul was a Jew, born in
Tarsus, a famous city of Cilicia; for it appeareth in the said 21st chapter, ver. 39. by his
own words, Ego homo sum quidem Judæus a Tarso Cilicice, non ignotæ civitatis
municeps. And in the 22d. chapter, ver. 3. Ego sum vir Judæus natus Tarso, Cilicice, &c;
and then made that excellent sermon there recorded, which, when the Jews heard, the text
saith, ver. 22. Levaverunt vocem suam dicentes, Tolle de terra hujusmodi, non enim fas
est eum vivere; vociferantibus autem eis et projicientibus vestimenta sua, et pulverum
jactantibus in aerem, Claudius Lysias, the popular Tribune, to please this turbulent and
profane multitude (though it were utterly against justice and common reason) the text
saith Jussit Tribunus induci eum in castra; 2. flagellis ecedi, and 3. torqueri eum (quid
ita?) ut sciret propter quam causain sic acclamarent; and when they had bound Paul with
cords, ready to execute the Tribune's unjust commandment, the blessed Apostle (to avoid
unlawful and sharp punishment) took hold of the law of a heathen emperor, and said to
the Centurion standing by him, Si hominem Romanum et indemnatum licet vobis
flagellare ?) Which when the Centurion heard, he went to the Tribune and said, Quid
adurus es? Hic enim homo cives Romanus est. Then came the Tribune to Paul, and said
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unto him, Dic milli si tu Romanus es? At ille dixit, etiam. And the Tribune answered, Ego
multa summa civitatem hanc consequutus sum. But Paul, not meaning to conceal the
dignity of his birthright, said, Ego autem et natus sum: as if he should have said to the
Tribune, you have your freedom by purchase of money, and I (by a more noble means)
by birthright and inheritance. Protinus ergo (saith the text) decesserunt ab illo qui illum
torturi erant, Tribunus quoque timuit postquam rescivit, quia civis Romanus essel, et quia
alligasset eum. So as hereby it is manifest that Paul was a Jew, born at Tarsus in Cilicia,
in Asia Minor; and yet being born under the obedience of the Roman Emperor, he was by
birth a citizen of Rome in Italy in Europe, that is, capable of and inheritable to all
privileges and immunities of that city. But such a plea as is now imagined against Calvin
might have made St. Paul an alien to Rome. For if the Emperor of Rome had several
ligeances for every several kingdom and country under his obedience, then might it have
been said against St. Paul, that he was extra [7-Coke-24 b] ligeantiam Imperatoris regni
sui Italice, et infra' ligeantiam Imperatoris regni sui Cilicice, &c. But as St. Paul was
Judæus patri‚, et Romanus privilegio, Judæus natione et Romanus jure nationum; so may
Calvin say, that he is Scotus patria, et Anglus privilegio Scotus natione, et Anglus jure
nationum.
            Samaria in Syria was the chief city of the ten tribes - but it being usurped by the
King of Syria, and the Jews taken prisoners, and carried away in captivity, was after
inhabited by the Panyms. Now albeit Samaria of right belonged to Jewry, yet because the
people of Samaria were not under actual obedience, by the judgment of the Chief Justice
of the whole world they were adjudged alienigen 6e, aliens: for in the Evangelist St.
Luke, c. 17. when Christ had cleansed the ten lepers, unus autem ex illis (saith the text) ut
vidit quia mundatus esset, regressus est cum magn‚ voce magnificans Deum, et cecidit in
faciem ante pedes ejus gratias agens, et hic erat Samaritanus. Et Jesus respondens dixit,
Nonne decem mundati sunt,etnovem ubi sunt? Non est inventus qui rediret et daret
gloriam Deo nisi hic alienigena. So as, by his judgment, this Samaritan was alienigena, a
stranger born; because he had the place, but wanted obedience. Et si desit obedientia, non
adjuvet locus. And this agreeth with the divine, who saith, Si locus salvare poluisset,
Satan de cælo pro sua inobedientia non cecidisset. Adam in paradiso non cecidisset, Lot
in monte, non cecidisset, sed potius in Sodom.
            6. Now resteth the sixth part of this division, that is to say, six demonstrative
matrons or conclusions, drawn plainly and expressly from the premises.
            1. Every one that is an alien by birth, may be, or might have been, an enemy by
accident: but Calvin could never at any time be an enemy by any accident; llrA he cannot
be an alien by birth. Vide 33 H. 6. f. 1. a. b. the difference between an alien enemy, and a
subject traitor. Hostes sunt qui nobis, vel quibus nos helium decernimus, cæteri
proditores, prædones, &c. The major is apparent, and is proved by that which hath been
said. Et Vide Magna Charta, cap. 30. 19 E. 4. 6. 9 E. 3. c. 1. 27 E. 3.c. 2. 4 H. 5. c. 7. 14
E. 3. stat. 2. c. 2. &c.
 
7 Coke Report 25 a, 77 ER p407
            2. Whosoever are born under one natural ligeance and obedience due by the law
of nature to one sovereign are natural-born subjects: but Calvin was born under one
natural ligeance and obedience, due by the law of nature to one sovereign; ergo, he is a
natural-born subject.
            [7-Coke-25 a] 3. Whosoever is born within the King's power or protection, is no
alien: but Calvin was born under the King's power and protection; ergo he is no alien.
            4. Every stranger born must at his birth be either amicus or inimicus: but Calvin at
his birth could neither be amicus nor inimicus; ei-go he is no stranger born. Inimicus he
cannot be, because he is subditus: for that cause also he cannot be amicus; neither now
can Scotia be said to be solum amici, as hath been said.
            5. Whatsoever is due by the law or constitution of man, may be altered: but
natural ligeance or obedience of the subject to the sovereign cannot be altered; ergo
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natural ligeance or obedience to the sovereign is not due by the law or constitution of
man. Again, whatsoever is due by the law of nature, cannot be altered: but ligeance and
obedience of the subject to the sovereign is due by the law of nature; ergo it cannot be
altered. It hath been proved before that ligeance or obedience of the inferior to the
superior, of the subject to the sovereign, was due by the law of nature many thousand
years before any law of man was made; which ligeance or obedience (being the only
mark to distinguish a subject from an alien) could not be altered; therefore it remaineth
still due by the law of nature. For leges naturæ perfectissimæ sunt et immutabiles, humani
vero juris conditio semper in infinitum decurrit, et nihil est in eo quod per moriuntur
perpetuo stare possit. Leges humance nascuntur, vivunt, moriuntur.
            Lastly, whosoever at his birth cannot be an alien to the King of England, cannot
be an alien to any of his subjects of England: but the plaintiff at his birth could be no
alien to the King of England; ergo the plaintiff cannot be an alien to any of the subjects of
England. The major and minor both be two positiones perspicue veræ. For as to the major
it is to be observed, that whosoever is an alien born, is so accounted in law, in respect of
the King: and that appeareth first, by the pleading so often before remembered, that he
must be extra ligeantiam, Regis, without any mention making of the subject. 2. When an
alien born purchaseth any lands, the King only shall have them, though they be holden of
a subject, in which case the subject loseth his seigniory. And as it is said in our books an
alien may purchase ad præficuum Regis; but the act of law giveth the alien nothing: and
therefore if a woman alien marrieth a subject, she shall not be endowed (L), neither shall
an alien be tenant by the curtesy. Vide 3 H. 6. 55 a. 4 H. 3. 179. 3. The subject shall plead
that the defendant is an [7-Coke-25 b] alien born, for the benefit of the King, that he upon
office found may seize; and 2. that the tenant may yield to the King the land, and not to
the alien, because the King hath best right thereunto. 4. Leagues between our sovereign
and others are the only means to make aliens friends, et fædera percutere, to make
leagues, only and wholly pertaineth to the King. 5. Wars do make aliens enemies, and
bellum indicere belongeth only and wholly to the King, and not to the subject, as
appeareth in 19 Ed. 4. 4. fol. 6 b 6. The King only without the subject may make not only
letters of safe conduct, but letters patent of denization, to whom, and how many he will,
and enable them at his pleasure to sue any of his subjects in any action whatsoever real or
personal, which the King could not do without the subject, if the subject had any interest
given unto him by the law in any thing concerning an alien born. Nay, the law is more
precise herein than in a number of other cases to of higher nature: for the King cannot
grant to any other to make of strangers born, denizens; it is by the law itself so
inseparably and individually annexed to his Royal person (as the book is in 20 H. 7. fol.
8). For the law esteemeth it a point of high prerogative, jus majestatis, et inter insignia
summæ potestatis to make aliens born subjects of the realm, and capable of the lands and
inheritances of England in such sort as any natural born subject 1s. And therefore by the
statute of 27 H. 8. c. 24. many of the most ancient prerogatives and Royal flowers of the
Crown, as authority to pardon treason, murther, manslaughter, and felony, power to make
justices in eyre, Justices of Assise, justices of peace, and gaol delivery, and such like,
having been severed and divided
 
7 Coke Report 26 a, 77 ER p408
from the Crown, were again re-united to the same: but authority to make letters of
denization was never mentioned therein to be resumed, for that never any claimed the
same by any pretext whatsoever, being a matter of so high a point of prerogative. So as
the pleading against an alien, the purchase by any alien, leagues and wars between aliens,
denizations, and safe conducts of aliens, have aspect only and wholly unto the King. It
followeth therefore, that no man can be alien to the subject that is not alien to the King.
Non potest esse alienigena corpori, quinon est capiti, non gregi qui non est Regi.
            The authorities of law cited in this case for maintenance of the judgment, 4 H. 3.
tit. Dower. Bracton, lib. 5. fol. 427. Fleta, lib. 6. cap. 47. In temi. E. 1. Hingham's Report.
85
17 Ed. 2. cap. 12. 11 Ed. 3. [7-Coke-26 a] cap. 2. 14 Ed. 3 Statut de Francia. 42 Ed. 3. fol.
2. 42 Ed. 3. cap. 10. 22 Lib. Ass. 25. 13 Rich. 2. cap. 2. 15 Rich. 2. cap. 7. 11 Hen. 4. fol.
26. 14 Hen. 4. fol. 19. 13 H. 4. Statutum de Guyan. 29 Hen. 6. tit. Estoppel 48. 28 H. 6.
cap. 5. 32 Hen. 6. fol. 23. 32 Hen. 6. fol. 26. Littl. temps Ed. 4. lib. 2. cap. Villenage. 15
Ed. 4. fol. 15. 19 Ed. 4. 6. 22 E. d. 4. cap. 8. 2 Rich. 3. 2. and 12. 6 Hen. 8. fol. 2. Dyer.
14 H. 8. cap. 2. No manner of stranger born out of the King's obeisance, 22 H. 8. c. 8.
Every person born out of the realm of England, out of the King's obeisance, 32 H. 8. c.
16. 25, H. 8. 0. 15, &c. 4 Ed. 6. Plowd. Comment fol. 2. Fogassa's case. 2 and 3 Ph. and
Mar. Dyer 145. Shirley's case. 5 El. Dyer 224. 13 El. c. 7. de Bankrupts. All commissions
ancient and late, for the finding of offices, to entitle the Kingto the lands of aliens born;
also all letters patent of denization of ancient and later times do prove, that he is no alien
that is born under the King's obedience.
            Now we are come to consider of legal inconveniences: and first of such as have
been objected against the plaintiff; an, secondly, of such as should follow, if it had been
adjudged against the plaintiff.
            Of such inconveniences as were objected against the plaintiff, there remain only
four to be answered; for all the rest are clearly and fully satisfied before: 1. That if
postnati should be inheritable to our laws and inheritances, it were reason they should be
bound by our laws; but postnati are not bound by our statute or common laws; for they
having (as it was objected) never so much freehold or inheritance, cannot be returned of
juries, nor subject to scot or lot, nor chargeable to subsidies or quinzimes, nor bound by
any Act of Parliament made in England. 2. Whether one be born within the kingdom of
Scotland or no, is not triable in England, for that it is a thing done out of this realm, and
no jury can be returned for the trial of any such issue: and what, inconvenience should
thereof follow, if such pleas that wanted trial should be allowed (for then all aliens might
imagine the like plea) they that objected it, left it to the consideration of others. 3. It was
objected, that this innovation was so dangerous, that the certain event thereof no man
could foresee, and therefore some thought it fit, that things should stand and continue as
they had been in former time for fear of the worst. 4. If postnati were by law legitimated
in England, it was objected what inconvenience and confusion should [7-Coke-26 b]
follow if (for the punishment of us all) the King's Royal issue should fail, &c. whereby
those kingdoms might again be divided. All the other arguments and objections that have
been made have been answered before, and need not to be repeated again.
            1. To the first it was resolved, that the cause of this doubt was the mistaking of the
law: for if a postnatus do purchase any lands in England, he shall be subject in respect
thereof, not only to the laws of this realm, but also to all services and contributions, and
to the payment of subsidies, taxes, and public charges, as any denizen or Englishman
shall be; nay, if he dwell in England, the King may command him, by a writ of ne exeat
regnum, that he depart not out of England. But if a postnatus dwell in Scotland, and have
lands in England, he shall be chargeable for the same to all intents and purposes as if an
Englishman were owner thereof, and dwelt in Scotland, Ireland, in the Isles of Man,
Guernsey, or Jersey, or elsewhere. The same law is of an Irishman that dwells in Ireland,
and hath land in England. But if postnati, or Irishmen, men of the Isles of Man, Guernsey,
Jersey, &c. have lands within England, and dwell here, they shall be subject to all
services and public charges within this realm, as any Englishman shall be. So as to
services and charges, the postnati and Englishmen born are all in one predicament.
 
7 Coke Report 27 a, 77 ER p409
            2. Concerning the trial, a threefold answer was thereunto made and resolved:
            1. That the like objection might be made against Irishmen, Gascoins, Normans,
men of the Isles of Man, Guernsey, and Jersey, of Berwick, &c. all which appear by the
rule of our books to be natural born subjects; and yet no jury can come out of any of
those countries and places, for trial of their births there. 2. If the demandant or plaintiff in
any action concerning lands be born in Ireland, Guernsey, Jersey, &c. out of the realm of
86
England, if the tenant or defendant plead, that he was born out of the ligeance of the
King, &c. the demandant or plaintiff may reply, that he was born under the ligeance of
the King at such place within England; and upon the evidence the place shall not be
material, but only the issue shall be, whether the demandant or plaintiff were born under
the ligeance of the King in any of his kingdoms or dominions whatsoever: and in that
case the jury, (if they will) may find the special matter, viz. the place where he was born,
and leave it to the judgment of the Court: and that jurors may take knowledge of things
done [7-Coke-27 a] out of the realm in this and like cases, Vide 7 H. 7. 8 b. 20 Ed. 3.
Averment 34. 5 Ric. 2. tit. Trial 54. 15 Ed. 4. 15. 32 H. 6. 25. Fitz. Nat. Brey. 196. Vide
Dowdale's case, in the Sixth Part of my Reports, fol. 47. and there divers other judgments
be vouched (M). 3 Brown, in anno 32 H. 6. reporteth a judgment then lately given, that
where the defendant pleaded that the plaintiff was a Scot, born at St. John's town in
Scotland, out of the ligeance of the King; whereupon they were at issue, and that issue
was tried where the writ was brought, and that appeareth also by 27 Ass pl. 24. that the
jury did find the prior to be born in Gascoin. (for so much is necessarily proved by the
words trove fuit.) And 20 Ed. 3. tit. Averment 34. in a juris utrum, the death of one of the
vouchees was alleged at such a castle in Britain, and this was inquired of by the jury; and
it is holden in 5 Rich. 2. tit. Trial 54. that if a man be adhering to the enemies of the King
in France, his land is forfeitable, and his adherency shall be tried where the land is, as
oftentimes hath been done, as there it is said by Belknap: and Fitz. Nat. Br. 196 in a
mortdanc. if the ancestor died in intinere peregrinationis sum vers. Terram sanctam, the
jury shall enquire of it: but in the case at Bar, seeing the defendant hath pleaded the truth
of the case, and the plaintiff hath not denied it, but demurred upon the same, and thereby
confessed all matters of fact, the Court now ought to judge upon the special matter, even
as if a jury upon an issue joined in England, as it is aforesaid, had found the special
matter, and left it to the Court.
            3. To the third it was answered and resolved, that this judgment was rather a
renovation of the judgments and censures of the reverend Judges and sages of the law in
so many ages past, than any innovation, as appeareth by the book and bookcases before
recited: neither have Judges power to judge according to that which they think to be fit,
but that which out of the laws they know to be right and consonant to law. Judex bonus
nihil ex arbitrio suo faciat, nec proposito domestics voluntatis, sed juxta leges et jura
pronuntiat. And as for timores, fears grounded upon no just cause, qui non cadunt in
constantem virum, vani timores æstimandi sunt.
            4. And as to the fourth, it is less than a dream of a shadow, or a shadow of a
dream: for it hath been often said, natural legitimation respecteth actual obedience to the
sovereign at the time of the birth; for as the antenati remain aliens as to the Crown of
England, because they were born when there were several Kings of the several kingdoms,
and the [7-Coke-27 b] uniting of the kingdoms by descent subsequent cannot make him a
subject to that Crown to which he was alien at the time of his birth: so albeit the
kingdoms (which Almighty God of his infinite goodness and mercy divert) should by
descent be divided, and governed by several Kings; yet it was resolved, that all those that
were born under one natural obedience while the realms were united under one sovereign,
should remain natural born subjects, and no aliens; for that naturalization due and vested
by birthright, cannot by any separation of the Crowns afterward be taken away: nor he
that was by judgment of law a natural subject at the time of his birth, become an alien by
such a matter ex post facto. And in that case, upon such an accident, our postnatus may
be ad fidem utriusque Regis, as Bracton saith in the afore remembered place, fol. 427.
Sicut Anglicus non
 
7 Coke Report 28 a, 77 ER p410
auditur inplacitando aliquem de Terris et tenement' in Franci‚ ita nec debet Francigena et
alienigena, qui fuerit ad fidem Regis Franciæ, audiri placitando in Anglid: sed tamen sunt
aliqui Francigenæ in Franci‚ qui sunt adfidem utriusque; et semperfuerunt ante
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Normaniam deperditam, et post, et qui placitant hic et ibi, ed, ratione qua sunt ad fidem
utriusque, sicut fuit Willielmus comes mareschallus et manens Angli‚, et M. de Gynes
manens in Franci‚, et alii plures. Concerning the reason drawn from the (a) etymologies,
it made against them, for that by their own derivation alienæ gentis and alienæ ligeantice
is all one: but arguments drawn from etymologies are too weak and too light for Judges to
build their judgments upon: for sæpenumero ubi proprietas (b) verborum altenditur,
sensus veritatis dimittitur: and yet when they agree with the judgment of law, Judges may
use them for ornaments. But on the other side, some inconveniences should follow, if the
plea against the plaintiff should be allowed: for first it maketh ligeance local: Videlicet,
ligeantia Regis regni sib Scotiæ, and ligeantia Regis regni sui Angliæ: whereupon should
follow, first, that faith or ligeance, which is universal, should be confined within local
limits and bounds: secondly, that the subjects should not be bound to serve the King in
peace or in war out of those limits; thirdly, it should illegitimate many, and some of noble
blood, which were born in Gascoin, Guienne, Normandy, Calais, Tournay, France, and
divers other of His Majesty's dominions, whilst the same were in actual [7-Coke-28 a]
obedience, and in Berwick, Ireland, Guernsey, and Jersey, if this plea should have been
admitted for good. And, thirdly, this strange and new devised plea inclineth too much to
countenance that dangerous and desperate error of the Spencers, touched before, to
receive any allowance within Westminster-hall.
            In the proceeding of this case, these things were observed, and so did the Chief
Justice of the Common Pleas publicly deliver in the end of his argument in the Exchequer
Chamber. First, that no commandment or messuage by word or writing was sent or
delivered from any whatsoever to any of the Judges, to cause them to incline to any
opinion in this case; which I remember, for that it is honourable for the State, and
consonant to the laws and statutes of this realm. Secondly, there was observed, what a
concurrence of judgments, resolutions, and rules, there be in our books in all ages
concerning this case, as if they had been prepared for the deciding of the question of this
point: and that (which never fell out in any doubtful case) no one opinion in all our books
is against this judgment. Thirdly, that the five Judges of the King's Bench, who adjourned
this case into the Exchequer Chamber, rather adjourned it for weight than difficulty, for
all they in their arguments una v. oce concurred with the judgment. Fourthly, that never
any case was adjudged in the Exchequer Chamber with greater concordance and less
variety of opinions, the Lord Chancellor and twelve of the Judges concurring in one
opinion. Fifthly, that there was not in any remembrance so honourable, great, and
intelligent an auditory at the bearing of the arguments of any Exchequer Chamber case,
as was at this case now adjudged. Sixthly, it appeareth, that jurisprudentia legis
communis Angliæ est scientia socialis et copiosa: sociable, in that it agreeth with the
principles and rules of other excellent sciences, divine and human: copious, for that
quamvis ad ea quæ frequentius accidunt jura adaptantur, yet in a case so rare, and of such
a quality, that loss is the assured end of the practice of it (for no alien can purchase lands,
but he loseth them; and ipso facto the King is entitled thereunto, in respect whereof a man
would think few men would attempt it) there should be such a multitude and farrago of
authorities in all successions of ages, in our books and bookcases, for the deciding of a
point of so rare an accident. Et sic determinate et terminala est ista quæstio.
            [7-Coke-28 b] The Judgment in the said Case, as entered on Record, &c.
"Whereupon all and singular the premises being seen, and by the Court of the Lord the
now Kino, here diligently inspected and examined, and mature deliberation being had
thereof; for that it appears to the Court of the Lord the now King here, that the aforesaid
plea of the said Richard Smith and Nicholas Smith above pleaded,
 
7 Coke Report 1 a, 77 ER p411
is not sufficient in law to bar the said Robert Calvin from having an answer to his
aforesaid writ: therefore it is considered by the Court of the lord the now King here, that
the aforesaid Richard Smith and Nicholas Smith to the writ of the said Robert do further
88
answer."
            [See now the statutes for the union of both kingdoms.]-Note to former edition.
Bulwer's Case 7 Coke Report 1a, 77 ER 411
Report Date: 1584
[7-Coke-1 a] BULWER'S CASE.
            Mich. 26 & 29 Eliz.
            [See British South Africa Company v. Companhia de Mo?ambique [1893] AC
631.]
B. brought an action on the case in the county of N. for maliciously causing him to be
outlawed in London upon process sued out of a Court at Westminster, and causing him to
be imprisoned in N. upon a capias  utlagatum directed to the sheriff of that county, but
issued at Westminster; and upon demurrer it was adjudged that the action was well
brought in the county of N.
In all cases where the action is founded on two things done in several counties, and both
are material or traversable, and the one without the other does not maintain the action, the
plaintiff may bring his action in which county he will. SC.4 Leon. 52.
            Bulwer of Dalling in Norfolk, brought an action on his case against George
Smith, and declared that one Henry Heydon, Esq. did recover 201. &c. in the Common
Pleas against the plaintiff, and after judgment, and before execution, the said Henry
Heydon died, and afterwards the said defendant knowing thereof, at W. in the county of
Norfolk to outlaw the plaintiff upon the said judgment in the name of Henry Heydon
malitios et deceptiv? machinatus est, in performance of which the defendant, Trin. 23
Eliz at Westminster in Middlesex, purchased a writ of capias  ad satisfaciendum, in the
name of the said Henry, upon the said judgment, directed to the Sheriffs of London, who
by the procurement of the defendant returned non est inventus; whereupon the defendant
purchased a writ of exigent in the name of the said Henry, which writ the said sheriff by
the procurement of the said defendant returned, that at several Hustings the said now
plaintiff had been demanded, et ad Hustingum ad communibus placitis tent' in GuildhalI,
civitatis præd' die Lun' prox post Festum Apostol. Simonis et Jud', anno supradict' præd'
the now plaintiff, quint' exactus fuit, &c. et ideo ipse the plaintiff utlagalus fuit: and
afterwards Pasch. 24 El. the defendant purchased out of the said Common Pleas a writ of
capias utlagatum, in the name of the said Henry, directed to the Sheriff of Norfolk, to
arrest his body, &c. which writ did mention that the said now plaintiff was outlawed die
Lun' prox' ante Festum Apostolorum Simonis et Jud', &c. And the said writ the defendant
at W. aforesaid in the said county of Norfolk, did deliver to one Robert Godfrey then
deputy to the sheriff of the said county, to the intent that he should execute the said writ,
the which Robert by force of the said writ took, and arrested the said now plaintiff, and
did imprison him by the space of two months, until the now plaintiff purchased his
charter of pardon, by reason of which outlawry he forfeited all his goods and chattels: and
upon this declaration the defendant did demur in law; and the principal cause of the
demurrer was because this action, by the pretence of the defendant, [7-Coke-1 b] ought to
have been brought in Middlesex where the wrong began, for there (as it was said) the
defendant took out as well the cap ad satisfac as the exigent and the cap' utlagalum also.
And although the cap utlagal' was executed in Norfolk, yet the action ought to be brought
where the wrong began; as in the case of conspiracy in 42 E. 3. 14 a. and divers other
cases also were put; also by the outlawry which was in London all his goods and chattels
were forfeited where it is more reason to bring the action than in Norfolk. But it was
answered and resolved, that the (a) action was well brought in Norfolk; for it
 
7 Coke Report 2 a, 77 ER p412
is a maxim in law, quod ibi semper debet fieri triatio, ubi jurator meliorem possunt
habere notitiam. And in Norfolk was the visible wrong, for there the plaintiff was
imprisoned for the space of two months, and therefore it is great reason that the plaintiff
may have his action there; and it doth not appear by the record what goods or chattels the
89
plaintiff had at the time of the outlawry, but for the aggravating of the damages, the
plaintiff may give in evidence what goods and chattels he hath forfeited by the outlawry.
And this action doth consist upon two principal parts, the one, matter of record, and the
other matter in fact; and none of the matters of record, but is mixed with matter of fact;
and no matter of fact, but is mixed with matter of record: for the writs and the outlawry
are matters of record, but mixed with matters in fact, sc. purchasing, and prosecution of
them by the defendant in the name of Henry Heydon, which are matters in fact; also the
imprisonment is a matter in fact, but it is mixed with the writ of cap' utlagat', which is of
record, sc. if the plaintiff was arrested by virtue thereof. And matters in fact are triable
only by the country and not matters of record; and when one matter in One county is
depending upon the matter in the other county, there the plaintiff may (b) choose in
which county he will bring his action (unless the defendant upon the general issue
pleaded, should be prejudiced in his trial, as he would not be in this case) as if two (c)
conspire to indict a man in one county, and-they by their malicious prosecution make the
execution of their conspiracy in another county, and there cause the party to be indicted,
the plaintiff may have his action of conspiracy in which county he will, for they put their
conspiracy in one county in execution in the other, and the matter of record of the
indictment is mixed with the matter of fact. But if they conspire in one county, by force
of which conspiracy without any other act by them, he is indicted in another county, there
the writ ought to be brought in the county where the conspiracy was, for the defendants
have done nothing in the county where the indictment was, nor were parties nor privies to
the finding of the indictment, but only by the conspiracy in the other county. And that
appears in 14 E. 4. 3 b. and so 6e books in (d) 42 E. 3. 14 a. 20 (e) H. 6. 1 0 a. b. F. N B.
(f) 116 b. and other books are well reconciled. If a (g) menace be made in Essex by which
my tenants depart in London, I shall have my action in Essex, and not [7-Coke-2 a] in
London, for in such case I have done nothing in London, 9 H. 6. 42 b. In all cases where
the action is founded upon two (a) things done in several counties, and both are material
or traversable, and the one without the other doth not maintain the action, there the
plaintiff may choose to bring his action in which of the counties he will (A), as it is if a
servant be (b) retained in one county and departs in another, and therewith agree 41 E. 3.
1 b. 34 H. 6. 18 a. 38 H. 6. 15 b. 15 E. 4. 6. 20 H. 6. 11. 29 H. Dyer 38. 20 E. 3. 25. &c.
So if a man be arrested in execution
 
7 Coke Report 2 b, 77 ER p413
in one county, and be (c) escapes into another county, the plaintiff may choose to bring
his action in which of the counties he will, and therewith agree 15 E. 4. 3 a. b. 30 H. 6. 6
a. b. 11 El. Dy. 27 8. So in a writ of (d) annuity founded on a prescription against a man
of religion, or body corporate, where the church or house is in one county, and the seisin
is alleged in another county, the plaintiff may choose in which county he will bring his
action. 48 E. 3. 26. a. b. 4 H. 4. 1. 4 H. 6. 5 b. 10 H. 6. 19 a. b. 39 H. 6. 15 b. 2 E. 4. 28 b.
4 E. 4. 26 a. &c. F. N. B. 152 e. Otherwise if the annuity be granted in one county to be
paid in another, the action lies where the grant was, and so is 8 H. 6. 23 b. So if a man
cites one in one county to appear before (e) the Admiral in another county, for a thing
done in the body of the county, by force of which the party appears, he may have his
action in the one County or the other at his pleasure, 5 Ma. Dyer 159 b. 42 E. 3. 14 a. 44
E. 3. 31 b. 32 a. 46 E. 3. 8 b. 3 H. 4. 3 a. 38 H. 6. 14 b. 14 E. 4. 3 a. b. The same law of
the Spiritual Court. So if the defendant casts a protection in one county, and remains in
another county, he may bring his action in which of the counties he pleases. 20 H. 6. 10 a.
b. So if a man strikes a person in one county, (f) and he dies in another county, the appeal
of murder may be brought in the one or the other county, and yet the defendant did
nothing in the county where the party died, but the (g) death which ensued on the stroke
makes the felony. 18 E. 3. 32. 9 H. 6. 63. 45 Ass pl. 9. 43 Ed. 3. 3 (h) H. 7. 12 a. 4 H. 7.
18. 6 H. 7. 10. 11 H. 4. 93. If a man commits (i) a robbery in one county, and carries the
goods into divers counties, the party robbed may have an appeal of felony in which of the
90
counties he will, but not an (k) appeal (B) of robbery but only in the county where the
robbery was done; for it is felony in all the counties where the goods are carried (for
felony doth not divest property) but it is not robbery (which ought to be done to the
person of a man) but only in the county where the robbery was done. 4 H. 7. 5 b. 9 H. 8.
39, 40. Dyer, 11 H. 4. 93. 3 E. 3. tit. Ass. 446. In debt if a man declares on a lease (l) for
years in one county of land in another county, he ought to bring his action where the lease
was made, and not where the land lies; for the action is grounded upon the contract made
by the lease (c). 38 H. 6. 15. acc. per Cur. 8 H. 6. 23. Acc. Vide 4 H. 6. 18. 14 E. 4. 3. 29
H. 8. 40 Dyer. So the law well explained in a case in which are [7-Coke-2 b] varieties of
opinions in our books. But if a lease be made in one county, and the land lies in another,
the action of (a) waste shall be brought where the land lies, and not where the lease was
made, although the term be passed; for the land and damages, or damages only for the
waste which is local, shall be recovered. 14 E. 4. acc. If a
 
7 Coke Report 3 a, 77 ER p414
man promises to (b) cure one- in one county, and misdoeth in another county, the
plaintiff has his election to bring his action in which of the counties he will, and therewith
agrees 11 R. 2. Action sur le Case 37. If a man doth not repair a wall in Essex, which he
ought to repair, whereby my land in Middlesex is drowned, I may bring my action in
Essex, for there is the &fault, as it is adjudged in 7 H. 4. 8; or f may Turing in Middlesex,
for there I have the damage, as it is proved by 11 R. 2. Action sur le Case 36. So if one
forge a (c) deed in one county and proclaims it in another, the plaintiff may choose in
which county he will bring his action. 29H.8.38. 22H.6.5a, b. But when the defendant
upon pleading not guilty shall be prejudiced in his trial, there the plaintiff hath not
election to bring his action in which county he will, (d) 29 H. 8. Dyer 38. where Gawyn
sued an appeal of robbery in the county of Wilts where the robbery was done, against
Hussey and Gibbs, as accessories, and declared that the principals named in the writ, and
who were attainted, did the robbery in the county of Wilts, and that the defendant
feloniously at London, before the robbery done, did abet them to do it; and it was
adjudged, that although the plaintiff can have but (e) One appeal against the principals
and accessories, and against the principal of necessity it ought to be brought in the county
of Wilts, yet because those of the county of Wilts upon not guilty pleaded, and London
cannot join), and those in Wilts cannot inquire of a thing in London, although it be
transitory (for in case of felony which concerns the life of a man, every act shall be tried
in the proper county where the act was in truth done) the appeal against the said
accessories did abate, 43 E. 3. 17, 18, 19. And it is to be observed, that in all real actions,
if any issue rises on the land, or in any action in which the possession of the land or (f)
local thiD01, or which rises on the land b reason thereof, is to be recovered, all these shall
be brought in the county where the land lies; as in a writ of right of ward of land, or writ
of intrusion of ward, these shall be brought in the county where the land lies; although the
refusal were, or the seigniory be in another county, 29 E. 3. 3. 38 H. 6. 1, b. 22 R. 2. Bre.
937. Acc. So in a writ of right of ward for the body only, it shall be brought in the county
where the land is, for that is in the right and savours of the land, 21 E. 3. 42. 30 E. - 3. 25.
9 E. 3. 12, 13. 10 E. 3. 7. ace and the reason of 40 E. 3A. agrees with it, although the
judgment there is mentioned to be given contrary. But a writ of ravishment of ward shall
be brought where the ravishment was, and not where the land is, or where the body is
carried: for it [7-Coke-3 a] is founded on the ravishment. 38 H. 6. 14 b. 22 R. 2. Brey.
937. and 12 E. Dy. 289. And a writ of forfeiture of marriage shall be brought where the
land is, for the writ doth suppose an intrusion into the land; and therewith agrees the said
book in 22 R. 2. and 38 H. 6. 15 a. And a writ de valore (a) maritagii shall be brought
where the land is; for the lord need not make any (b) tender: but if he makes a tender, and
the other refuses, and he alleges it in the county, then the writ de valore maritagii lies in
the county where the refusal was, 22 R. 2. Brey. 937. 38 H. 6. 15 a. Writs of qui imp and
qu incumbravit (c) shall be always brought where the church is; for by the one the
91
plaintiff shall recover his presentment, and by the other the bishop's clerk shall be
removed, and the plaintiff's clerk admitted, 38 H. 6. 14 and 15 accord. Vide 4 Ed. 3. 9.
Otherwise it is in the King's case. But a qu. (d) non admisit shall be brought in the county
where the refusal was, and not in the county where the church is, because damages are
only to be recovered, and the refusal is the beginning of the wrong, and the ground of the
action; and so is the book adjudged in 38 H. 6. 14 and 15. F. N. B. 47. f. And a qu. imp of
a prebend shall be brought in the county where the cathedral church is,
 
7 Coke Report 3 b, 77 ER p415
and not in the county where the body of the prebend is; for the plaintiffs clerk is to be
inducted and installed in the cathedral church, a-rid therewith agrees 21 E. 3. 5. and 2 El.
Dy. 194. (e) but 43 E. 3. 34. and 15 Ed. 3. Br. 325. seem contrary. 24 E. 3. 37. And so the
law is well explained in a case in which there were different opinions in our books. And
if a man at the common law had a rent issuing out of two counties, he could not have had
an (f) assise in one county, because every part of the land in the two counties is charged
with the rent, and all should be put in view, as it is agreed in 18 E. 2. Ass. 380. 18 E. 3.
32. 10 E. 3. 21. 10 Ass p. 4. and 18 Ass. P. l. But if a man makes a lease pur auter vie of
land in two counties, rendering rent, and the rent is behind, and cest' que vie dies, the
lessor shall have ail action of debt in which of the counties he will, for now it is changed
into debt; and in that case no land shall be put in view, but the person of the debtor shall
be only charged by the common law. So if a rent he issuing Out of the land of B. in two
counties, and the rent is behind, and he who has the rent dies, his executors may have ail
action of debt against B. in which of the counties they will, on the statute of 32 H. 8. cap.
37; for although he ought to bring his action in one of the counties, yet at the common
law the person of the defendant is chargeable in the action of debt, and not the land. And
before the statute of (g) 6 R. 2. c. 2. a writ of debt and account against a receiver, and
such actions might be brought in such county where the party might he best brought in to
answer, and the plaintiff might have declared on a contract or receipt, &c. in any other
county, quod debitum et contractus, &c. sunt (h) nullius loci. See for that 2 Ed. 3. 44. 6
Ed. 3. 266. and 275. 8 E. 3. 380. [7-Coke-3 b] 10 E. 3. 7. 19 E. 3. Jurisd. 29. 29 E. 3. 26.
33 E. 2. tit. Jurisd. 57. 40 E. 3. 7. 3 H. 6. 30. 15 E. 4. 1,9. 21 E. 4. 88. As in 22 H. 6. 9 and
10 a. b. where the King granted the office of surveyor of packing of all manner of cloths
within London and the liberties thereof, which are in two counties, and the assise was
brought in Middlesex, and there Newton and Paston said, that there is a great difference
between an assise of rent and that assise; for where a rent-charge is issuing out of lands in
divers counties, every parcel is chargeable with the whole, and all the ter-tenants ought to
be named; but here the person is charged and not the land, and yet the office-for which
the assise was brought did extend in two counties. And if a fine or feoffment be made of
lands in two counties, with warranty, the warrants charke may be brought in any of the
counties, 29 E. 3. 3 a. b. It is purviewed by the statute of 7 R. 2. c. 10. that an assise of
nov' disseis. shall for the future be granted and made of a rent behind, due for tenement in
divers counties to be held in confin' comitat': and thereupon the assise shall be taken and
tried by the people of the same county, in the same manner and form as it is done of a
common of pasture in one county appendant to tenements in another county: for at the
common law, if a man had bad common in land in one county appendant or appurtenant
to land in another county, he should have two several writs to the sheriffs of the several
counties. Or if the land to which, &c. lay in one county, and the land in which, lay in
several counties, there he should have a writ of assise to the sheriff of the county where
the land in which, &c. lay, and several writs to the sheriff of the county where the land in
which, &c. lay; and all that appears in the regist and F. N. B. 180 a. And the same law is,
when a nuisance is done in one county, and the land to which, &c. is in another county, as
it appears also in the register, and F. N. B. 183 k. (D). So that if a man hath a rent in three
or four
 
92
7 Coke Report 4 a, 77 ER p416
counties, it seemeth that he who is disseised may have several assises to be brought in
confin' comitatuum; for the letter of the statute of 7 R. 2. is general of rent due for
tenements in several counties. And although it hath a reference to the case of common of
pasture, &c. yet forasmuch as in the case of common of pasture, if the land in which, &c.
lay in several counties, and the land to which, &c. lay in another county, there should be
as many writs as there are several counties; thence it follows, that such remedy he shall
have who hath a rent issuing out of lands in many counties. Also the case of common is
put exempli grati‚ et simililudinari, et null' simile quatuor pedib' currit; and it is not
necessary that a simile should agree in all points. And the statute of 7 T.R. 2. was made to
satisfy a doubt which was conceived before: for thereby it is enacted, that writs in such
case shall be made in the Chancery without any manner of contradiction, as well of
disseisins before made, as after to be made. And the doubt was on the statute of Magna
Charta, cap. 2. Recognitiones de novo, disseisin 6 [7-Coke-4 a] et de morte antecessor'
non caviantur nisi in suis comitatu. And some held, that the same was not observed when
the Justices of Assise did sit in confinio comitatuum; and, namely, when there are twenty
counties mesne between the two counties, as it is in the book in 5 E. 4. 2 b. But that doubt
also might be conceived on the said assise of noy disseisin of common when the land in
which, &c. is in one county, and the land to which, &c. in another county (which case
without question is not restrained by the said statute. For assise of noy disseisin of
common of pasture lay at the common law, as by the statute of Westminster 2. c. 29.
appears), 1 0 E. 3. 2 1. and 10 Ass p. 4. And if need were, the statute of Westminster 2. c.
28. doth extend to the said case of rent, by which it is provided, quod quotiescunque de
cætero, evenerit in cancellaria quod in uno casu resent' breve, et in consimili casu,
cadente sub eod jure, et simili inidgente remedio non resent' concordant clerici in
canceller' in brevi faciendo, &c. vel ad proxim' Parliament' de consensu arisperitor` fiat
breve. And the statute concludes with the effect of a maxim of the common law, quod
Cur' dom' Regis non debet deficere conquerentibus in justitia, perquirenda. 38 E. 3. 33 a.
where the case was, that the King brought a writ of right of the fourth part of the tithes
and offerings of the church of St. Dunstan in the West, in Fleet-street, in the suburbs of
London, against the Prior of St. John's of Jerusalem in England, there Candish took
exception to the writ, because although this writ was given by the statute of Westminster
2. c. 5. toward the end, and artic. Clerc. 2. which statute gave, that he shall have a writ ad
petendum advocation' decimar petitar', &c. And this writ is brought of the fourth part of
tithes and offerings, which is not warranted by the statute judgment of the writ,
forasmuch as the statutes do not give any writ of the fourth part of tithes. Thorpe, the
Chief Justice, who gave the rule, said, although the statute do not limit by express words,
but of tithes, yet those in the Chancery may make: a writ in consim' casu, and the writ is
good enough; wherefore answer. And In 18 E. 2. Br. 287. a writ of entry was brought in
the county of Suffolk, the tenant pleaded a release of the ancestor of the plaintiff with
warranty, which was denied, and found for the plaintiff in London, by a jury of Friday-
street, &c. for which the demandant did recover; and the tenant brought an attaint, and
there exception was taken, because in the writ is not comprised to attach the party,
judgment, &c. And for the plaintiff it was said, that the writ was granted to the Sheriff of
London to summon the 24, and attach the 12, and another writ to the Sheriff of Suffolk to
attach the party where the land was, and both the writs were read in Court. To which it
was said, that there was no special law, that did maintain that writ which is out of the
common course. Berisford the
 
7 Coke Report 4 b, 77 ER p417
Chief Justice, who gave the rule, said, in a now case, a new remedy, &c. wherefore
answer. And therefore, if there be lord and tenant, and the tenancy doth extend into two
counties, in this case if the rents and services he behind, the lord may have several writs
of customs and services, for every county one writ, and shall have [7-Coke-4 b] them
93
returnable at one day in the Common Pleas, and then to count upon them as his case is,
quia aliter Curia (a) Regis deficeret conquerentibus in justitia perquirenda, and therewith
agree Fitz. Nai.'Brey. 151. b. and 30 Ed. 1. Droit pl. ultim 6. And that is a good example,
pro quolibet consimili casu, &c. simili indigente remedio. Vide 12 Ed. 1. tit. Attaint 71. a
very good case; and the reason and rule of the book in 21 Ed. 3. 18. is to be observed,
where the case was, that a fine was levied of a manor in one county, and the tenancy lay
in another county; now where the per quæ servitia should be brought was the question;
and it was adjudged that it was well brought in the county where the manor was. And
there Stone gave the rule of the Court in these words: he can have no other writ, for his
writ must be according to the fine, and brought in the county where the note is levied.
Vide 11 Rich. 2. tit. Action sur le Case 36. 7 H. 4. 8. Vide 26 Hen. 6. tit. Covenant 9. 41
Ass pl. 12. 9 Hen. 5, 6. 22 Hen. 6. 5. And in the principal case where it was objected, that
the said capias  utlagatum was erroneous; for it was proximum ante festum, &c. where it
should be, a post festum, &c. the Court took no regard to it; for the error in the writ which
the defendant himself hath wrongfully brought, shall not (b) advantage himself; but in
regard he was imprisoned and troubled thereby, that gave the plaintiff cause of action.
Also the Court did not regard the clause, that the defendant at W. in the county of
Norfolk, &c. malitios? et deceptiv? machinats fuit, &c. for that is so secret and so
uncertain, that it cannot be tried.
Corbet's Case 7 Coke Report 5a, 77 ER 417
Report Date: 1585
[7-Coke-5 a] SIR MILES CORBET'S CASE.
            Hil. 27 Eliz.
            In the Exchequer.
Resolved 1. Where one has purchased divers parcels of land in D. together, in which the
inhabitants have used to have shack and long since has inclosed it; and notwithstanding
always after harvest the inhabitants have had shack there, by passing into it by bars or
gates with their cattle, then it shall be taken as common apendant or appurtenant, and the
owner cannot exclude them of common: but if in the town of S. the custom and usage
hath been, that every owner in the same town hath inclosed their own lands from time to
time, and so hath held it in severalty, any owner may inclose, and hold in severalty, and
exclude himself to have shack with the others.
2. If the commons of the town of A. and of the town of B. are adjoining, and one ought to
have common with the other, by reason of vicinage and in A. there are fifty acres, and in
B. one hundred acres of common, the inhabitants of A. cannot put more cattle into their
common of fifty acres than it will feed; nec e converso.
            Between Sir Edw. Clere and Miles Corbet, then esquire, now a knight, it was
resolved in a case concerning the parsonage of Marham, in the county of Norfolk, that
where in the county of Norfolk there is a special manor 'of common called shack, which
is to be taken in arable land, after harvest until the land be sowed again, &c. and it began
in ancient time in this manner: the fields of arable land in this country consist of the lands
of many and divers several persons lying intermixed in many and several small parcels,
so that it is not possible that any of them, without trespass to the others, can feed their
cattle in their own land; and therefore every one doth put in their cattle to feed promiscu
in the open field. These words, " To go shack," is as
 
7 Coke Report 5 b, 77 ER p418
much as to say to go at liberty, or to go at large: in which the policy of old times is to be
observed, that the severance of fields in such small parcels to so many several persons
was to avoid inclosure, and to maintain tillage. But it is to be observed, that the said
common, called shack, which in the beginning was but in the nature of a feeding because
of vicinage for avoiding of suit, within some places of that country, is by custom altered
into the nature of a common appendant or appurtenant, and in some places it retains its
original nature; and the rule to know it is the custom and usage of every several town or
94
place, for consuetudo loci est observanda. And therefore if in the town of D. (exempli
gratia) one who hath purchased divers parcels together, in which the inhabitants have
used to have shack, and long time since has inclosed it; and notwithstanding always after
harvest the inhabitants have had shack there, by passing into it by bars or gates with their
cattle, there it shall be taken as common appendant or appurtenant, and the owner cannot
exclude them of common there, notwithstanding he will not common with them, but hold
his own lands so inclosed in severalty; and that is proved by the usage; for
notwithstanding the ancient inclosure, the inhabitants have always had common there.
But if in the town of -S. the custom and usage hath been, that every Owner in the same
town hath inclosed [7-Coke-5 b] their own lands from time to time, and so hath held it in
severalty, there this usage proves, that it was but in the nature of shack originally for the
cause of vicinage, and so it continues; and therefore there he may inclose (A) and hold in
severalty, and exclude himself to have shack with the others. And although in the said
case of the town of D. the usage hath been, that notwithstanding the inclosure by divers
inhabitants of late times the other inhabitants have had shack there; yet if a man hath an
ancient close of ancient time taken out of the field, and be and all those whose estate he
hath have held it always in severalty, he may well keep it inclosed: for as to such parcel
so anciently inclosed, the shack there doth retain its ancient and original nature. And he
who claims shack there cannot prescribe to have common in it. Nota, a good resolution
which stands with reason; and no inconvenience, innovation, or cause of suits or trouble
can thereupon arise, but quiet and repose will be thereby in many cases established,
which I thought fit to be reported, because it is a general case in the said country; and at
first the Court was altogether ignorant of the nature of this common called shack. It was
also resolved at the same time, that if the commons of the town of A. and of the town of
B. are adjoining, and that one ought to have common with the other by reason of
vicinage, and in the town of A. there are fifty acres of common, and in the town of B.
there are an hundred acres of common; in that case the inhabitants of the town of A.
cannot put more cattle into their common of fifty acres than it will feed, without any
respect to the common within the town of B. nec e converso; for the original cause of this
common for cause of vicinage was not for profit, but for preventing of suits in a
Champaign country; for the reciprocal escapes of the one town into the other: and
therefore if the common of the town of A. will feed fifty beasts, and of the town of, B. an
hundred beasts, it is no prejudice to the one or the other, if the cattle of one town escape
and feed in the common of the other town reciprocally; for if all the cattle feed promiscu
together through the whole, it will be no prejudice to one or the other.
 
7 Coke Report 6 a, 77 ER p419
            [Note. The like intercommoning is in Lincolnshire, Yorkshire and other counties;
and in Mich term, 18 Car. 2. B. R. Twisden, Justice, said, that this common called sh‚ck
was but Common per cause de vicinage.]-Note to former edition.
[7-Coke-6 a] CASES UPON THE STAT. OF 13 ED. 1. OF WINCHESTER.
            Westm. 1 c. 9. 2 Inst. 172. 3 Inst. 117, 118. 2 Saund. 423. 5 Co. 67 b.
            The purview of the said Act is, "That from henceforth every county be so well
kept, that immediately after robberies and felonies committed, fresh suit be made from
town to town, and from county to county, &c." And after the felony or robbery is
committed, the county shall have no longer space than 40 days, within which 40 (a) days
it shall behove them to agree for the robbery or trespass, or else that they answer for the
bodies of the offenders, &c. Upon which words divers resolutions have been made.
 
[end]
95
96
97
98
99
The English Common Law in the United States
Author(s): Herbert Pope
Reviewed work(s):
Source: Harvard Law Review, Vol. 24, No. 1 (Nov., 1910), pp. 6-30
Published by: The Harvard Law Review Association
Stable URL: http://www.jstor.org/stable/1324643 .
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100
HARVARD LAW REVIEW.
THE ENGLISH COMMON LAW IN THE
UNITED STATES.
T HERE has been some debate
recently regarding the law
that is
taught
in our American law
schools,'
and the
sug-
gestion
has been made that the time has now arrived when the
emphasis
should be
placed upon
the local law
-
the law of a
par-
ticular
jurisdiction,
like Illinois -rather than
upon
a so-called
general law, which,
it has been
assumed,
is or
ought
to be the same
in all the states where the common law is
supposed
to
prevail.
Without
contributing directly
to this
discussion,
it has seemed to
the writer that a better
understanding
of the
problem
of the law in
this
country,
and of the
meaning
of the terms "local" and
"general"
law,
would be obtained if some
attempt
were first made to ascer-
tain what is meant
by
the common law which has been
adopted
in
some form
by
most of the states in this
country.
Did the
adop-
tion of the common law of
England
mean the
adoption
of a com-
plete system
or
general body
of
law,
which should have the
effect,
if
properly administered,
of
making
the decisions of the courts of
the different states
uniform;
or did its
adoption
mean
primarily
that, by
reason of the force and effect
given by
the common law of
England
to decided
cases,
there should
develop
in each
separate
state,
as in
England,
a more or less scientific
system
of law
which,
of
necessity, must,
in each
state,
become in time a
separate
and
distinct
body
of law? Which of these
views,
as to the effect of
the
adoption
of the common
law,
is the
accepted one,
or is it true
that, disregarding
the fact that the two views
necessarily
involve
more or less inconsistent ideas of what is meant
by
the
law,
the
courts in this
country
have
been,
and still
are, attempting
to make
both views
prevail
and work in
harmony?
These
questions
are
worth consideration in
any attempt
to determine the
meaning
and
nature of the common law in this
country.
For some reason the
writings
of Bentham and Austin
upon
the
nature of the common law have never had
any great
influence in
1
Vol.
xxxi, Reports
of American Bar
Association, IOI2-1027, I9-1-11I9,
and
vol.
xxxiii, 780
and
9g9.
6
101
THE ENGLISH COMMON LAW IN THE UNITED STATES.
7
this
country, certainly
not with the courts. And
yet
no better
op-
portunity, perhaps,
could have been offered for
testing conflicting
theories of the nature of the common law of
England
than the
adoption
of that law as a rule for the
government
of courts in
jurisdictions
different from that of
England.
The earlier
genera-
tions of
lawyers
in the United States were
taught
law
by
Black-
stone,
and his view that the courts
only
discover or declare a
preexisting
law was
generally accepted
in this
country,
not
only
by
writers on the
law,
such as
Kent,
but
by
the courts and the
lawyers.
It
was, perhaps,
of no
great practical consequence,
so far
as
English
law was
concerned,
if Blackstone and the
English judges
preferred
to
say
that the courts did not make the
law,
but
only
declared
it,
so
long
as it was
always
understood that the common
law of
England
on
any subject
was never different from the law
as settled
by
decided cases. But when the
question
concerned the
effect of the
adoption
of the common law of
England
as a con-
trolling
source of law in another
jurisdiction,
it
obviously
made
some difference whether
English
decisions were
thereby
made as
controlling
and
binding upon
the courts of that other
jurisdiction
as the decisions of its own
courts,
or whether
English
decisions
were
only
made some evidence of the common
law,
and the courts
of the other
jurisdiction
were in fact
given perfect
freedom to
determine for themselves what the
English
common law was or
ought
to
be,
at the same time that their own
decisions, according
to the rule of the
English
common
law,
became
binding upon
them
in the decision of
subsequent
cases. In the one case the common
law of
England
is identified with the decisions of the
English courts;
in the other it is treated as
something existing apart
from the deci-
sions of the
English courts,
which all courts
subject
to the rule of
the common law are
engaged independently
in
discovering
and
declaring, though
in
regard
to which their discoveries and declara-
tions should be the same. Which of these views is the
prevailing
one in this
country?
I.
It is
generally assumed,
even outside of our law
schools,
that
in those states in which the
English
common law has been
adopted,
the decisions of the courts
should, upon
most
questions,
in the
102
HARVARD LAW REVIEW.
absence of
modifying statutes,
be the same. This
general assump-
tion is illustrated
by
the
presumption
which is
indulged
in
by
the
courts of one common-law state in
regard
to the law of another
such state.2
If,
for
instance,
in a case
pending
in a court in Illi-
nois,
it becomes material to know the law of New
York,
the Illi-
nois
court,
in the absence of direct
evidence,
will
presume
that the
common law as found and declared
by
the courts of Illinois is the
law of New York
also,
on the
theory that,
as both courts declare
or
interpret
the same common
law,
they
should arrive at the same
result. This
means,
of
course,
that the decisions of the courts
of Illinois are
regarded
not
only
as
determining
the law of
Illinois,
but as
correctly declaring
the common law
adopted
in the different
states. The law of Illinois and the common law are
regarded by
the courts of Illinois as
identical,
and the courts of all the other
states which derive their law from the common law of
England
regard
their own decisions in the same
light. But,
while each
state
regards
its own decisions as correct declarations of the com-
mon
law,
which
ought
to be followed in all common-law states
unless modified
by statute,
it admits that the decisions of other
state
courts,
even when different from its
own,
do in fact deter-
mine the law of those
states,
whether such law be the true common
law or not. The settled decisions of the
highest
courts in each of
the states are
accepted
in other state courts as conclusive evi-
dence of the law in each of those states.
Similarly,
the United States
courts, upon
certain
questions
of
so-called
general law,
not
yet completely defined,
assume the
existence of a uniform law which should be declared in the same
way by
the courts of all of the states. But even this
general law,
which is
regarded
as so
obviously
the same
everywhere,
is not in
fact
always
discovered and
declared in the same
way by
all the
courts. This is
recognized by
the federal
courts,
but
instead,
on
that
account,
of
following
the different decisions of the state courts
in which
they sit,
the federal courts assume the
right
to exercise
an
independent judgment
in
declaring
this
general law,
so that
there
may
be
uniformity
of decision on such
questions
in all the
federal courts at least.3 The federal courts sometimes
speak
of
2
See
"Presumption
of the
Foreign Law," by
Albert Martin
Kales,
I9 HARV. L.
REV.
401.
3
Myrick
v.
Michigan
Central R.
R., 107
U. S.
I02, io9-IIo.
8
103
THE ENGLISH COMMON LAW IN THE UNITED STATES.
9
this law which
they
declare
independently
as a
general law,
and
sometimes as the common
law,
or as based
upon
common-law
principles,
but if there is a
general
law which is still more
general
than the common
law,
at
any
rate it is not
regarded by
the federal
courts as different in its
principles
from the common law.4 It is a
law which is assumed to
prevail
at least in all of the states which
have
adopted
the common law of
England.
The federal
courts,
in cases in which
they
have
jurisdiction,
like
the different state
courts,
exercise this
power
of
declaring
the com-
mon law for the
purpose
of
determining
the law of the states.
The federal
courts,
like the state
courts,
assume that the
general
law and the law of the states is
identical,
and
they
assume also
that their decisions not
only
correctly
declare the common
law,
but the law of all the states as well. Unlike the attitude of the
different state courts toward one
another, however,
the federal
courts do not
always accept
the decisions of the state courts on
these
questions
of
general law,
when different from their own deci-
sions,
as conclusive determinations of the law of the states. And
as each
court,
federal and
state, applies
the common-law doctrine
of stare decisis to its own
decisions,
the result is that contracts and
other acts
subject
to the
"general"
law
may
be in fact
governed
at one and the same time
by
two
conflicting laws,
-
the law as
declared
by
the state court and a different law declared
by
the
federal court.5
4
In the famous
Baugh case, I49
U. S.
368,
the court refused to follow the deci-
sions of the court of Ohio on the fellow-servant
question,
-a
question
of
"general
law,"
- but decided it for itself as a
question
which "rests
upon
those considerations
of
right
and
justice
which have been
gathered
into the
great body
of the rules and
principles
known as the 'common law."'
5
It has not
yet
been
determined,
so far as the writer
knows,
whether
parties may
provide
that their contract shall be
governed by
the law of the federal
courts,
but
the law of the
place
of a contract is
usually regarded
as determined
by
the decisions
of the state courts.
Suppose
a
"general-law"
contract is made after a decision of the state
court,
on
common-law
principles, declaring
the
rights
and
obligations
of
parties
to such con-
tracts.
Suppose
the federal
court, exercising
an
independent judgment
in a similar
case, disagrees
with the state
court,
and then
suppose
the contract in
question
comes
before the state court and that court overrules its former decision and follows the
decision of the federal court. Would such a
change
of decision
by
the state court
be held to
deprive
the
parties
of their constitutional
rights
under the doctrine laid
down in Muhlker v. N. Y. & H. R. R.
Co., I97
U. S.
544
? Or is the rule of that case
inapplicable
to cases which fall within the
"general"
law, and have
parties
no
right
to
rely upon
the
principle
of stare decisis in such cases ?
104
HARVARD LAW REVIEW.
The result of this doctrine of the federal courts is a
striking
illustration of the difficulties which follow from an
attempt
to
apply
at one and the same
time,
in the same
territory,
the common-
law doctrine of the
authority
of
precedent
- the identification of
the law of a
particular jurisdiction
with the decisions of its courts
-and the view that the decisions of the courts are
only
evidence
of the
law,
which other
courts,
if
given
the
opportunity, may
declare
differently.
In cases of
"general" law,
the federal courts consider
it of more
importance
that the true
general
or common law should
be declared as the law of the states
by
the federal courts at
least,
even at the sacrifice of the common-law
principle
of
singleness
of
the law within a
given territory;
while in those cases where the
decisions of the state courts have settled a rule of
property,
the
federal courts deem it better to
forego
their assumed constitu-
tional
duty
to declare
independently
the true common
law,
for
the sake of
preserving
within each state the common-law
prin-
ciple
of the
authority
of
precedent
and
singleness
in the law.6
The
question
which it is now
necessary
to consider is whether
this common or
general law,
which is assumed to be the same in
all
states,
is identical with the common law of
England adopted
6
See the latest case in the
Supreme
Court of the United States on this
subject,
Kuhn v. Fairmont Coal
Co., 215
U. S.
349,
where the
right
of the federal court to
decide for itself a
question relating
to real
property
was
sustained,
the cause of action
having
accrued
prior
to
any
decision
by
the state court on the
subject, though
such
a decision was rendered
by
the state court before the federal case was decided.
Suppose
that after the decision of the case
by
the West
Virginia court,
but before
the case was decided
differently by
the federal
court, parties
in West
Virginia
had
entered into a contract similar to that
passed upon.
If that contract later came before
the West
Virginia
court and that court
changed
its
mind, and,
instead of
following
its
prior decision,
followed the decision of the federal
court,
would the doctrine of the
Muhlker
case, I97
U. S.
544,
be
applied
on writ of error from the United States Su-
preme
Court to the state court ?
Probably
it would. But this
only
shows that the
federal court does not declare the law of the state in the common-law
sense;
its
power
in such
respects
is not in fact co6rdinate with the
jurisdiction
of the state court. Even
on
questions
of
general
law it is the decisions of the state courts which in fact deter-
mine the law of the
state;
the federal
courts,
while
purporting
to declare the law of
the
state,
are in fact
making
the law of the federal courts.
Take another
example. Suppose
a case similar to
Gelpcke
v.
Dubuque
had come
up
in the federal court before
any
decision on the
question
in the state court.
Sup-
pose,
after the decision
by
the federal
court,
a similar case came
up
in the state court
on a contract made after the decision
by
the federal
court,
and the state court dis-
agreed
with the federal court. Would the
Supreme
Court of the United
States,
on
writ of error to the state
court,
hold that the decision of the state court
deprived
the
parties
of their constitutional
rights
?
IO
105
THE ENGLISH COMMON LAW IN THE UNITED STATES. II
by
the different
states,
in
many
cases
by statute,
or whether the
adopted
common law of
England
is
something
different from this
general
common law.
The
Supreme
Court of the United States has in several instances
7
put
the
precise question,
"What is the common law?" and has
uniformly
answered it in these words
quoted
from Kent's Com-
mentaries: 8
"The common law includes those
principles, usages,
and rules of
action
applicable
to the
government
and
security
of
persons
and
prop-
erty,
which do not rest for their
authority upon any express
and
posi-
tive declaration of the will of the
legislature."
Such a definition9 does not
materially
advance our
present
in-
quiry,
and
merely suggests
in another form the
question:
Did the
adoption
of the common law of
England
have the effect
merely
to
confer
upon
the courts of each state the
power
to decide for them-
selves,
in the absence of
statute,
what are the
"principles, usages,
and rules of action
applicable
to the
government
and
security
of
persons
and
property," regardless
of
previous
decisions
by
the
courts of
England
or of
any
other
jurisdiction?
If
so,
and if the
statement and
application
of these
principles by
the courts of each
state become
binding
as authorities
only upon
the courts of that
state,
then
obviously
the result in time can
only
be a different
body
of law in each state.
If,
on the other
hand,
it is assumed that
there is
only
one consistent and true set of
"principles, usages,
and rules of action
applicable
to the
government
and
security
of
persons
and
property,"
that this one set of
principles
constitutes
the common law as it
really is,
and the decisions of all the courts
are
only
evidence of what this real common law
is,
then
obviously
the search for this true common law
ought always
to be main-
tained
by
the courts of
every
common-law
jurisdiction.
No
principle
of stare decisis should be
applied by
state or federal
7
Western Union Tel. Co. v. Call
Publishing Co.,
I8I
U. S.
92,
Iox;
Kansas v.
Colorado,
206 U. S.
46.
8
Vol.
i, page 471.
9
It
may
be doubted if this definition is
any
more
helpful
than the statement of
the chancellor in the case of Marks v.
Morris, 4 Henning
& Munford
463:
"It was
the common law we
adopted,
and not
English decisions;
and we should take the stand-
ard of that
law, namely,
that we should live
honestly,
should hurt
nobody,
and should
render to
every
one his
due,
for our
judicial guide."
106
HARVARD LAW REVIEW.
courts until the true common law is discovered and
everywhere
accepted.
We shall find
many
state courts
repeating
the statement that it
was the
English
common law that was
adopted
and not the deci-
sions of
English
courts,
but,
as
already pointed out,
no court in
fact treats its own decisions as
merely
evidence of what the com-
mon law is. Each court
proceeds upon
the
assumption
that it
has discovered the real common
law,
and
regards
its own decisions
as
determining
the law for that
jurisdiction
at
least,
and as con-
trolling
in
subsequent cases, regardless
of
any suggestions
as to
what the common law
really
is or
ought
to be. Even if we
assume,
therefore,
that the
adoption
of the common law of
England
means
the
adoption
of a
single system
- one uniform and consistent
set of
"principles, usages,
and rules of action
applicable
to the
government
and
security
of
persons
and
property"
-we are
yet
forced to
recognize
that each one of the
separate
states has
adopted
the common-law
principle
of the
authority
of
precedent,
and acts
on the
theory
that what its courts decide is the real common law
governing
each
question passed upon.
No court treats its own
decisions as
subject
to be
disregarded
as
readily
as the decisions
of the courts of another
jurisdiction,
on the
ground
that
they
do
not
represent
the true
adopted
common law. If it
did,
it would
not be
following
the
practice
of the
English courts,
and the method
of
developing
and
defining
the law would be
essentially
different
from that
recognized by
the
English
common law. Such an
adopted
common law would be the
English
common law with its
most distinctive feature left
out,
- the feature which identifies
the law with the rules enforced
by
the courts.
In
short,
the
acceptance
and
application
of the common-law
principle
of the
authority
of
precedent
in a
given jurisdiction
eats
up
and
destroys
the
theory
that the decisions of the court are
only
evidence of the law. The two
principles
are
entirely
inconsist-
ent;
if
you accept
one
you
cannot have the other. Bentham
and Blackstone will not work
together.
But what
becomes, then,
of the
adopted
common law of
England
in this
country?
What
is that common law?
In the recent case of Kansas v.
Colorado,l?
the United States
10
206 U. S.
46.
12
107
THE ENGLISH COMMON LAW IN THE UNITED STATES.
13
Supreme Court,
after
quoting
the
passage
from Kent
already
re-
ferred
to, goes
on:
" As it
[the
common
law]
does not rest on
any
statute or other written
declaration of the
sovereign,
there
must,
as to each
principle thereof,
be a first statement. Those statements are found in the decisions of
the
courts,
and the first statement
presents
the
principle
as
certainly
as the last.
Multiplication
of declarations
merely
adds
certainty.
For
after all,
the common law is but the accumulated
expressions of
the
various
judicial
tribunals in their
efforts
to ascertain what is
right
and
just
between individuals in
respect
to
private disputes."
This is a sufficient identification of the common law with the
decisions of the
courts,
and if the first declaration of a
principle
by any
common-law court were followed
by
all other common-
law courts
everywhere,
or if there were a final court of
appeal
for
all
jurisdictions
in which the common law is the rule of
decision,
no further
difficulty, perhaps,
would be
experienced
in
determining
what the common law is. But state courts in
declaring
the com-
mon law do not
always
follow a
prior
decision in
England
or in
another
state,
and the federal courts do not
always
follow the
prior
decisions of the state courts whose common law
they pur-
port
to declare. The result is that there are a
great many
inde-
pendent jurisdictions
in this
country alone,
in which the courts are
all
supposedly engaged
in
declaring
the common
law,
and there
is no final court of
appeal
to determine what this common law
really
is. Most of these
jurisdictions
have
expressly adopted
the
common law of
England,
but there is
great uncertainty
as to what
this
English
common law thus
adopted
is.
If we
adopt
the
language
of the United States
Supreme
Court
last
quoted,
which identifies the common law with the decisions
of the
courts,
it should
follow,
if the
authority
of
precedent
within
a
single jurisdiction
is
recognized,
that the
English
common law
is "but the accumulated
expressions"
of the
English
courts "in
their efforts to ascertain what is
right
and
just
between individ-
uals in
respect
to
private disputes."
No courts other than
Eng-
lish courts can determine
definitely
and
finally
what the law of
England is,
and the common law of
England
on
any subject
can-
not
possibly
be
something
different from the final and settled
determinations of the
highest
court in
England.
The
common
law of
England
is what the
English
courts
make it. The courts
108
HARVARD LAW REVIEW.
of New York and Illinois
may express
an
opinion
as to the common
law of
England,
but
they
cannot
by any possibility
make the law
of
England
as the
English
courts in fact make
it, any
more than
the courts of New York can settle the law of
Illinois,
or the federal
courts,
which are in fact courts of another
jurisdiction,
can make
the law of the states in which
they
sit.
Any
other
jurisdiction, therefore,
which should now
adopt
the
English
common law as it is
to-day
must at least
adopt
those
principles
which are now established as the law of
England by
the decisions of the
English
courts. There is no
English
common
law which is different from the final decisions of the
English
courts.
To
talk, therefore,
about
adopting
the
English
common law with-
out
adopting
the decisions of the
English
courts is to talk about
adopting something
which does not
exist;
it is an
attempt
to
adopt
the common
law,
as
already stated,
with the essential and
significant
feature of
the
English
common law left
out,
-
the
feature which identifies the
English
common law with the deci-
sions of the
English
courts. Yet that is what
many
of our states
have
attempted
to
do,
and what the federal courts
regard
all of
them alike as
having
in fact done. The
theory is,
as it is often
expressed,
that the "whole
body"
of the
English
common law
was
adopted,
without
thereby making any English
decisions at
any period
of time
controlling
authorities in the states. On the
other
hand,
in other
states,
while it is admitted that
English
de-
cisions of some
period
of time are
binding upon
the state
courts,
it is not
agreed
what the
period
is in which the decisions rendered
by English
courts should be
regarded
as
controlling, and,
as a
matter of
fact,
in most instances the courts in this
country
treat
all
English
decisions of all
periods
as of the same
consequence,
to
be followed or not as
may
be seen fit in each
particular
case.
Whether we
speak
of
previous
decisions in a
given jurisdiction,
which,
under the rule of stare
decisis,
are
absolutely binding
in
subsequent cases,
as
constituting
the law
itself,
or
only
as authori-
tative sources of the
law,
is of no
great consequence.
The two
statements, properly understood,
mean the same
thing.
But it
is
important
to
distinguish
such
binding
decisions from the deci-
sions of the courts of other
jurisdictions, which, though they may
be sources of law in the sense of
furnishing
assistance in the matter
of
reasoning upon
the
principles
involved in a
case,
are not
binding
I4
109
THE ENGLISH COMMON LAW IN THE UNITED STATES.
I5
or
controlling
sources of law in the decision of
subsequent
cases
in other
jurisdictions.
In all serious
litigation,
where the
ques-
tions involved are never
absolutely settled,
it is
necessary
to draw
upon
all the sources of
legitimate legal argument. Opinions
ren-
dered in decided cases
bearing upon
the matter in hand are better
sources of
law, usually,
than
expressions
of
opinion
in
any
other
form.
Opinions
in such decided cases from other
jurisdictions,
when based on
general principles,
or on
general
sources of law
common to all
courts,
will
always
be
persuasive
and
especially
valuable for
purposes
of
argument;
11
but not because
they
consti-
tute
any
part of
the
adopted
common law
of England.
That is the
point
to remember. Decisions of New York
courts,
for
instance,
do not
represent,
in
Illinois, any part
of the common law of
Eng-
land
adopted by
the Illinois
statute,
which
provides
that the
common law of
England,
so far as
applicable,
shall be the rule of
decision until
changed by
statute. The
English
common law thus
adopted by
statute in Illinois is not
necessarily
the law of all the
states,
or a
general
law which all the states of the Union are
constantly pursuing
and
discovering,
much less
developing.
No
doubt the law
grows,
but not the
adopted
common law of
England
which is to remain unaltered until
changed by
statute. The
failure to
distinguish
between the
adopted
and
binding
common
law of
England,
and those
general
sources of law and
right
methods
of
reasoning
which
may properly
be
regarded
as of the same force
and
validity
in all the
states,
has been the cause of much of the
confusion
regarding
the
meaning
of the common law.
From the historical
point
of
view, also,
difficulties have existed.
No doubt the common law
brought
to this
country by
our
English
ancestors who settled the first colonies in America did
not,
as a
matter of historical
fact,
consist of all the decisions of
English
courts rendered
prior
to such settlements. Our ancestors knew
11 No
one, therefore,
who is to
engage actively
in the
practice
of the law
anywhere
in this
country
can
safely
confine his
knowledge
of the law to the cases of a
particular
jurisdiction,
and it
may
well be
argued
that the law schools should aim to fit the law-
yer,
not to know
merely
the settled law of
any
one
jurisdiction,
but to know the
gen-
eral sources of law and methods of
reasoning
which will enable him to deal with the
unsettled
problems.
At the same
time,
if he is to be
properly
trained in common-
law methods of
making law,
he must know in
particular
the force and effect to be
given
in each
jurisdiction
to the decisions of the courts of that
jurisdiction.
As a
practicing lawyer
it will
always
be with what the courts of some
particular jurisdiction
will decide that he will be concerned.
110
HARVARD LAW REVIEW.
little
enough
about such
decisions, and,
as a matter of
fact,
in
some of the colonies the law of God was
preferred
to the common
law. The
appeal
to the
protection
of the common law
by
the
colonists was
not,
for the most
part,
an
appeal
to the decisions of
English
courts in matters of
private rights,
but in matters affect-
ing
the
personal liberty
and
political privileges
of the
citizens.l2
It was a
long
time before
English
decisions were known and re-
ferred to
by
the courts in this
country
in the decision of
litigated
matters between
private parties.
After the Revolution and the
creation of the
states,
when settled courts conducted and
presided
over
by lawyers
became
established, English
decisions were
gen-
erally accepted
as authoritative. Whether the
adoption by
the
states of the common law of
England
meant that
English
decisions
prior
to the first colonial settlements were
binding upon
the state
courts,
and those after that time were
not,
was a matter little dis-
cussed. As Mr.
Gray
has
said,13
the decisions of
English
courts
after the settlement of the colonies and before the Revolution had
as
great
and direct an
influence,
as a matter of
fact, upon
the
decisions of the courts of this
country
as if
they
had been con-
sidered
binding
authorities. For a
long
time the
English
cases
were the
only
cases to which
any
reference could be made. It
was the
practice
of the courts
then,
as it is
still,
to declare that
such and such a rule was the rule of the common
law,
and refer
as
authority
to
English cases,
without reference to the date of the
decisions relied on. The
prejudice
which existed for a time in
this
country against English
decisions rendered after the Revo-
lution was
not,
in
particular,
a
prejudice
on the
part
of the courts.
But
when,
for
any reason,
the courts did not wish to
accept
the
rules laid down in such decisions of the
English courts,
the usual
method of
avoiding
their conclusions was
by saying
that the
Eng-
lish decisions were not the
law,
but
only
evidence of the law.
This,
in
fact,
became the common method of
treating
all
English
cases
not found
acceptable;
it was easier than
showing
in each one of
such cases that the
principle
involved was not
applicable
to con-
ditions in this
country.
Then there was the further
practical difficulty,
if all
English
12 See the article
by Reinsch,
"The
English
Common Law in the American Colo-
nies,"
vol.
ii,
Bulletin of the
University
of
Wisconsin, 23.
" "The Nature and Sources of the
Law,"
?
525.
i6
111
THE ENGLISH COMMON LAW IN THE UNITED STATES.
17
decisions
prior
to a
particular period
were to be
regarded
as bind-
ing,
in the fact that not all of such decisions were accessible to
the courts. In such a situation it was easier to
adopt
the
general
principles
of the common law than its
particular applications by
the
English
courts. This
practical difficulty
is illustrated
by
two
comparatively
recent decisions of the Illinois and
Kentucky
courts.14
Both.
courts
agree
that the
question
of criminal lia-
bility
at common law in the case of
agreements
between com-
petitors
to maintain
prices
is to be determined
by
the law of
conspiracy
as settled in
England prior
to
I606,
but
they disagree
entirely
as to what that settled law
was,
and neither court bases
its conclusions
entirely upon
actual decisions of
English
courts
rendered before
I606.
It would be a difficult
matter,
in the case
of
many subjects,
to state the common law of
England
as it was
prior
to i606 without
taking
cases since that date into account.
Where the common-law method of
developing
the law
by
means
of the decisions of courts
prevails,
it is
possible
to
speak
of deci-
sions
prior
to a certain
date,
but it is
very
difficult to state the
law in
general prior
to that date without
regard
to later deci-
sions which have in fact settled the law
as, theoretically,
it
always
was in the
particular jurisdiction.
It was not until there existed in the different states in this coun-
try
courts
regularly established, prepared
to decide
cases,
write
opinions,
and
apply
the common-law
principle
of the
authority
of
precedent,
that it could be said that there was
any
law admin-
istered in this
country
which was
substantially
like the common
law of
England.
But when that time
arrived,
when the
highest
courts in each state were
regularly engaged
in
deciding
cases and
applying
the rule of stare decisis to their own
decisions,
then there
began
to
develop
in each state a law of that state in
precisely
the
same sense that there existed a common law in
England developed
by
the
English
courts. If
English
decisions at
first,
no matter of
what
period,
had as
great
influence with the state courts as if
they
were decisions of their own
courts,
this influence could not con-
tinue with the
growth
of the decisions of the
separate
state courts.
The true state of the case has been concealed
by
the universal
assumption that,
at the same time that we
adopted
or created
14
Chicago,
W. & V. Coal Co. v.
People,
114 11.
App. 75, I04; 214
Ill.
421;
and
]Etna Insurance Co. v.
Commonwealth,
io6 Ky.
864,
880.
2
112
HARVARD LAW REVIEW.
common-law courts to determine the common law in each
state,
we
adopted
also a whole
body
of law or
system
of
principles
known
as the
English
common
law, which,
if
properly
understood and
applied,
would be a sufficient
guide
to the courts of each state in
the determination of all
questions
that
might
come before them.15
But,
as
already shown,
if the
adoption
of the common law meant
no more than the
adoption
of this
so-called
general law,
then the
application
in each state of the common-law
principle
of the au-
thority
of
precedent meant,
not
only
the destruction of this
general
law,
but the
development
in each state of a law different from the
common law of
England. Only
if all
English
decisions were
accepted by
the courts in this
country,
not
merely
as evidence of
the
English
common
law,
but as identical with
it,
could it be said
that the whole common law of
England
had been
adopted.
The
refusal to follow
English
decisions means
necessarily
the
develop-
ment in each state of a law different from the
English law, just
as the refusal of the federal courts to follow the decisions of the
state courts on certain
subjects
means the
development
in the
federal courts of a common law different from the law of the states.
The truth of the matter
is, therefore,
that the
greater part
of
the law of the states which is in fact identical with the common
law of
England
does not consist of the common law of
England
which was
adopted
and made
binding upon
our
courts,
but it
consists of rules established
by
the
English
Courts which have in
fact been
accepted
and followed
by
the courts in this
country,
without
regard
to the dates of the
English
decisions
establishing
such
rules,
and without consideration of the
question
whether
such decisions are a
part
of the
adopted
common law and
binding
upon
our courts or not. The distinction between
English
cases
which are
controlling
because
part
of the
adopted
common
law,
and
English
cases which are not
controlling
because not a
part
of the
adopted
common
law,
is seldom noticed. The confusion
and
inconsistency
which have resulted from the failure to
keep
the distinction in mind can be
fully appreciated only
after a care-
ful examination of the cases in each state. That this confusion
has contributed
greatly
to the
uncertainty
of the decisions of our
15 The statutes
which,
in
many states, expressly adopt
the common law of
Eng-
land
assume, apparently,
that that law will enable the courts to decide all
questions
that
may
come before them.
I8
113
TEE ENGLISH COMMON LAW IN THE UNITED STATES. 19
courts there can be no doubt. At one time the decisions of
Eng-
lish courts are
accepted
as conclusive of a
question;
at another
time,
or in another
jurisdiction
where the common law is
equally
controlling, English
decisions are
disregarded
and a new common
law,
a law founded
upon
a
supposedly
better
reason,
is established
in its
place.
If we had not
adopted
the common-law
principle
of
the
authority
of
precedent,
the law of the better reason
might
be
accepted
as the law which all of our
courts,
as well as our law
schools,
should
unceasingly
strive to
discover;
but as this
princi-
ple
of the common law has now become established more or less
securely
in
every jurisdiction,
we can
only hope
that in time our
courts will be at least as successful as the courts of
England
in
establishing
a
reasonably
definite and certain
body
of law in each
separate
state.
II.
The consideration of a few of the decisions of the courts in this
country,
if not sufficient to disclose all the
uncertainty
which has
resulted from the failure to determine
definitely
what is meant
by
the common law of
England,
will at least show
something
of the
variety
of views entertained
by
the courts in
regard
to the
adopted
common law. Let us
examine,
in the first
place,
some of the cases
in which the view is
expressed
that it was the whole of the common
law of
England
that was
adopted
in this
country,
and not a
por-
tion of it
merely,
or
only
certain decisions of the
English
courts.
In Williams v. Miles
16
we have an excellent statement of this
theory.
In that case the
question presented
was whether a former
will was revived
by
the destructio of a
subsequent
will which in
terms revoked the former one. Lord Mansfield had held
that,
in
such a
case,
the former will was
revived,
while the rule of the
English
ecclesiastical courts was the other
way
and was
generally
followed in this
country.
It was contended
by
counsel that the
Nebraska statute
adopting
the common law of
England required
the court to follow the rule laid down
by
Lord Mansfield and
applied
in the
English
common-law
courts,
since
English
decisions
prior
to the Revolution were made
controlling.
As to this con-
tention the court
says:
16
68 Neb.
463.
114
HARVARD LAW REVIEW.
"What is the
meaning
of the term 'common law of
England,'
as used
in
chapter 15 a, Compiled
Statutes ? 17
Does it mean the common law
as it stood at the time of the Declaration of
Independence,
or as it stood
when our statute was
enacted,
or are we to understand the common-
law
system,
in its
entirety,
including
all
judicial improvements
and
modifications in this
country
and in
England,
to the
present time,
so
far as
applicable
to our conditions ? We can not
think,
and we do not
believe this court has ever
understood,
that the
legislature
intended to
petrify
the common
law,
as embodied in
judicial
decisions at
any
one
time,
and set it
up
in such inflexible form as a rule of decision. The
theory
of our
system
is that the law
consists,
not in the actual rules en-
forced by
decisions
of
the courts at
any
one
time,
but the
principles
from
which those rules
flow;
that old
principles
are
applied
to new
cases,
and the rules
resulting
from such
application
are modified from time to
time as
changed
conditions and new states of fact
require
.... The
term 'common law of
England,'
as used in the
statute,
refers to that
general system
of law which
prevails
in
England,
and in most of the
United States
by
derivation from
England,
as
distinguished
from the
Roman or Civil Law
system,
which was in force in this
territory prior
to the Louisiana
purchase.
Hence the statute does not
require
adher-
ence to the decisions of the
English
common-law courts
prior
to the
Revolution,
in case this court considers
subsequent decisions,
either in
England
or
America,
better
expositions
of the
general principles
of that
system."
In this
view,
the
adoption
of the common law
gives
to the court
of Nebraska the fullest
power
to determine for itself what it re-
gards
as the soundest or
preferable
common-law doctrine
upon
any subject.
In Chilcott v. Hart
18 it was contended
by
counsel that the Colo-
rado
statute,19
adopting
the common
law,
made
English
decisions
prior
to
1607 controlling
where not
changed by statute,
while
17
The statute reads: "So much of the common law of
England
as is
applicable
and not inconsistent with the Constitution of the United States . . . is
adopted
and
declared to be law within said
territory."
18
23
Col.
40.
19
The Colorado statute is similar to that of Illinois and several other
states,
all
of which follow the
Virginia
act of
1776,
and
provide
that "the common law of
Eng-
land,
so far as
applicable
and of a
general nature,
and all statutes or acts of the Brit-
ish Parliament made in aid
of,
and to
supply
the defects of the common
law, prior
to
the fourth
year
of
James
the
First,
and which are of a
general
nature and not local
to that
kingdom,
shall be the rule of
decision,
and shall be considered as of full force
until
repealed by legislative authority."
20
115
THE ENGLISH COMMON LAW IN THE UNITED STATES. 21
English
decisions since that time were
not;
that
prior
to
I607
the
English
rule was that
executory
devises which did not vest within
lives in
being
were
void,
and that the
period
of
twenty-one years
and a fraction was not added until
later,
and therefore was not in
force in Colorado. The contention as to what the law of
Eng-
land was
prior
to
I607
was
probably unsound,
but the court deals
with the
question
of the common law of
England
that was
adopted
by
the Colorado
statute,
and
says:
"The rule
against perpetuities
was of slow
growth,
and in its
develop-
ment it was for no considerable
period,
if at
all,
that the time was thus
limited to one life
only.
The common law thus
being
a constant
growth,
gradually expanding
and
adapting
itself to the
changing
conditions of
life and business from time to
time,
what the law is at
any particular
time must be determined from the latest decisions of the
courts;
and
the
recognized theory
is
that,
aside from the influence of
statutory
enactments,
the latest
judicial
announcement of the courts is
merely
declaratory of
what the law is and
always
has been. We are at
liberty,
therefore,
if not
absolutely
bound
thereby,
to avail ourselves of the
latest
expression
of the
English
courts
upon any particular
branch of
the
law,
in so far as the same is
applicable
to our
institutions,
of a
gen-
eral
nature,
and suitable to the
genius
of our
people,
as well as to con-
sult the
English
decisions made
prior
to
I607."
The Colorado court
evidently agrees
with the Nebraska court
in
regard
to the
adopted
common
law, although
the statutes of
the two states are not the same. In
fact,
statutes similar to that
of Colorado have been construed in Illinois and
Kentucky
at least
as
adopting
the
English
common law as it existed
prior
to the fourth
year
of
James
the First. The Nebraska
statute,
which contains
no reference to the fourth
year
of
James
the First or
any
other
period,
is construed
merely
as
excluding
the civil law
(which
might
otherwise be claimed to be in force in a state
originally
a
part
of
Louisiana
territory)
or
any
other law which
might
be considered
as different from the common law. What the
adopted
common
law
is,
is left to the determination of the Nebraska
court,
and,
as
the Nebraska case above referred to
shows,
the court considers
itself at
liberty
to
prefer
the rule of the
English
ecclesiastical courts
to that of the
English
common-law
courts,
or even to
adopt
as
preferable
a rule different from that of the
English
courts.
It
might
be
difficult, perhaps,
to
suggest
any different
interpre-
116
HARVARD LAW REVIEW.
tation which could be
given
to such a statute as that of
Nebraska,
and the courts of other states which have
adopted
a similar statute
seem to
regard
the
adopted
common law in the same
light.
For
instance,
in Lux v.
Haggin
20 the
question
was as to the rule to
be
applied
in California
regarding
the
right
of a
riparian
owner to
appropriate
the waters of a stream. The common law of
Eng-
land, by
a statute
passed
in
I850,
had been made "the rule of
decision in all the courts of this
state,"
and the court
says
that
"the
expression
'common law of
England' designates
the
English
common law as
interpreted
as well in the
English
courts as in the
courts of such of the states of the Union as have
adopted
the
English
common law." The court then
goes
on:
" And it was not the common law 'as the same was administered' at
a certain date that was
adopted,
but the common law. . . . The statute
adopts
the common law of
England, except
where inconsistent with the
constitution and
statutes,
and there can be no
good
reason
why,
to
ascertain the common law of
England,
we should not refer to the
decisions of
English
and American courts
(in
states where the common
law
prevails)
rendered before and
subsequent
to the date of the
statute.
Looking
at the whole
array of adjudications,
if we find a
question
has
often been decided in one
way
. . . the rule of the common law in-
volved or
presented
in the
question ought
to be considered as settled.
...
Where the rule has become
settled,
it is
not,
as
opposed
to
any
former
decision,
a new
rule,
but must be held to have been the law from the
beginning,
because
'right
reason' has
always
been the
prime
element
of the law
...
. Courts do not
repeal
former decisions: when
they
reverse them
they
hold
they
were never law."
The statute of the state of
Washington
is
substantially
like that
of California. The case of
Sayward
v. Carlson21 presented the
fellow-servant
question,
and the court held it was not
obliged, by
the statute
adopting
the common
law,
to follow
English decisions,
that American courts as well as
English
courts decide what the
common law is.
"Therefore,"
the court
says,
"we have the com-
mon law as declared
by
the
highest
courts of
this, that,
and the
other
state,
and
by
the courts of the United
States,
sometimes
varying
in each."
Many
more
expressions
similar to those above
quoted might
22
20
69
Cal.
255-
21
i Wash.
29.
117
THE ENGLISH COMMON LAW IN THE UNITED STATES.
23
be
given
from the decisions of other state courts. It is not too
much to
say
that
they express
the
generally accepted
view in most
of the western states where the common law has been
adopted by
statute. Where the common law of
England
has not been
adopted
by express statute,
some
cases,
as in
Ohio, apparently
hold that
there is a common law of the state of which the law of
England
forms a
part.22
No
English
cases
evidently
are made
controlling.
In
Pennsylvania,
in the case of
Lyle
v.
Richards,23
we find the
statement that our ancestors
"brought
with them the common
law in
general, although many
of its
principles lay dormant,
until
awakened
by
occasion."
The law which is followed or declared
by
the United States
courts in connection with the decision of
questions
of so-called
general law,
where the rule of Swift v.
Tyson applies,24
and in cases
where the federal courts have a
special
or exclusive
jurisdiction,
is
a
general
common law
substantially
like that
adopted
in the states
to whose decisions reference has
already
been made. Whether
there is a common law of the United States
-
a much-discussed
question
-
depends obviously upon
what is meant
by
the common
law. In connection with the classes of cases above referred
to,
the
federal courts are
developing
a
separate
law in the same sense
and
by
the same methods that the state courts are
developing
what is called the common law in the states.
This is
clearly
stated
by
the Court of
Appeals
for the
Eighth
Circuit in the case of
Murray
v. C. & N. W.
Ry. Co.,25
where the
court
says:
" It has
always
been assumed that the federal courts were endowed
with a
power
and
jurisdiction adequate
to the decision of
every cause,
and
every question
in a
cause, presented
for their
consideration,
and
22
Railroad Co. v.
Keary, 3
Oh. St.
20I, 205;
Bloom v.
Richards,
2 Oh. St.
387,
390.
See also State v.
Cawood,
2 Stew.
(Ala.) 360, 362.
'2 9
Serg.
& Rawle
330.
24
An
inconsistency
in the
application
of the doctrine of Swift v.
Tyson
should be
noticed. When a state
adopts
a statute
governing
matters of so-called
general law,
the federal court follows the statute and the decisions of the state courts
interpreting
it. Yet state statutes
adopting
the common
law,
and the decisions of the state courts
determining
the
meaning
of the
statute,
are
disregarded by
the federal
courts,
even
though
the common law of
England,
as
adopted by statute,
does not mean the same
thing
in
every
state.
26
92
Fed. 868.
118
HARVARD LAW REVIEW.
of
applying
to their solution and decision
any
rule of the common
law,
admiralty law, equity law,
or civil law
applicable
to the
case,
and that
would aid them in
reaching
a
just result,
which is the end for which
courts were created. If a case is
presented
not covered
by any law,
written or
unwritten,
their
powers
are
adequate,
and it is their
duty
to
adopt
such rule of decision as
right
and
justice
in the
particular
case
seem to demand. It is true that in such a case the decision makes the
law,
and not the law the
decision,
but this is the
way
the common law
itself was made and the
process
is still
going
on. A case of first im-
pression, rightly
2 decided
to-day,
centuries hence will be common
law,
though
not a
part
of that
body
of law now called
by
that name." 27
And in the recent case of Kansas v. Colorado28 the United
States
Supreme
Court
speaks
of its decision of cases connected
with
boundary disputes
between the several states as
being
in
effect the creation of an "interstate common law." It is difficult
to
see, therefore, any
real difference between the
general
or common
law which the federal courts
rely
on in the decision of such
matters,
and the common law which states like
Nebraska, Colorado,
and
California have
adopted
as the rule of decision for their courts
in such cases as come before them. The
only controlling body
of
law in
any
case is the law which the
courts,
state and federal
alike,
make,
unless it can be said that the state courts are excluded from
preferring
a rule of the civil law as
preferable
to a settled rule of
the common-law courts of
England,
while the federal courts are
not.
And,
as a matter of
fact,
there are
many principles
estab-
lished as law in the various states which have been introduced at
different
periods
from the civil
law,
and which are not a
part
of
the
original
common law of
England.29
The
body
of common law
which is said to exist in the states is in no essential
respect
a
different source of law from that which the federal courts
rely
upon.
Let us consider now some of the decisions in which the view is
expressed
that the
adoption
of the common law of
England meant,
26
Is the use of this word intended to
suggest
that the common law consists of
all cases
rightly
decided in all
jurisdictions
?
27
See also Western Union
Telegraph
Co. v. Call
Publishing Co., 181
U. S. 92.
28
206 U. S.
46.
29
See Professor Beale's article in
23
HARV. L. REV. as to the
adoption
of the civil-
law rule with
respect
to the law which
governs
a
contract,
an
especially important
question
in this
country.
24
119
THE ENGLISH COMMON LAW IN THE
UNITED
STATES.
25
not the
adoption
of the whole common
law,
but the
adoption
of
the common law as it existed in
England prior
to some
particular
period,
so that
English
cases
prior
to that time became
binding
upon
the courts in this
country.
The most
interesting,
and
perhaps
the most
logical,
view in this
connection is that
expressed by
Chief
Justice
Marshall to the
effect "that as the common law of
England
was and is the common
law of this
country,
and as an
appeal
from the courts of
Virginia
lay
to a tribunal in
England,
which would be
governed by
the
decisions of the
courts,
the decisions of those
courts,
made before
the
Revolution,
have all that claim to
authority
which is allowed
to
appellate
courts." 30 Marshall states this
theory again
in two
other
cases,31 but,
in
spite
of the
weight
which is
usually
attached
to an
opinion
of
Marshall's,
the view never
gained general accept-
ance, although
it is referred to with
apparent
agreement
in some
other
cases,32
and was
accepted by Cooley
as the correct
exposi-
tion of the matter.33 It is much
easier,
however,
to find cases
which state that
English
cases after the Revolution are not bind-
ing
than it is to find cases where an
English
decision
prior
to that
time,
but after the settlement of the
colonies,
is followed for the
reason
merely
that it is a
binding authority.4
In some states the common law as it existed down to the time of
the Revolution35 is
declared,
either
by
a constitutional or statu-
tory provision,
to be in force. For
instance,
the Florida statute
provides
that "the common law and statute laws of
England
which are of a
general
and not of a local nature . . . down to the
fourth
day
of
July, I776,"
shall be in force in that state. With-
out
making
a more careful search of the authorities in these states
than the writer has found time
for,
it is
impossible
to
say, however,
that
English
decisions after the settlement of the colonies and before
the Revolution are held in
any
of these states to be
absolutely
binding.
The
prevailing
view in the eastern states of the
country
seems
30
Murdock & Co. v. Hunter's
Rep.,
i Brock.
I35, I40-I41.
31
Cathcart v.
Robinson, 5
Pet. (U. S.)
264, 280,
and
Livingston
v.
Jefferson,
I
Brock.
203, 2io.
32
Johnson
v. U. P. Coal
Co.,
28 Utah
46; Mayor
v.
Williams,
6 Md.
235, 265.
33
Cooley,
Constitutional
Limitations, chapters
iii and iv.
34
Gray,
Nature and Sources of the
Law,
p.
232.
35
For
example,
New
York, Georgia,
and Florida.
120
HARVARD LAW REVIEW.
to be that decisions of
English
courts
prior
to the settlement of
the
colonies, particularly
if
regarded
in
England
as
establishing
or
settling
the law of
England,
are to be
regarded by
the state courts
as
binding upon
them.
This, apparently,
is the view which is
taken also in those states which follow the
Virginia
statute of
1776,
for instance
Kentucky
and Illinois. In
Ray
v.
Sweeney
36 the
Kentucky
court holds that it is the common law as it existed
prior
to March
24, 60o6,
that is
adopted,
and
says:
"To declare that the common law and statutes enacted
prior
to that
time should be in
force,
was
equivalent
to
declaring
that no rule of the
common law not then
recognized
and in force in
England
should be
recognized
and in force
here,
. . . and when it is
sought
to enforce in
this state
any
rule of
English
common law as
such, independently of
its
soundness in
principle,
it
ought
to
appear
that it was established and
recognized
as the law of
England prior
to . . .
[March 24, i6o6]."
In Illinois the statute seems to be
given
the same
construction,
although
there has been considerable
uncertainty
in the decisions
from the
beginning.
For
instance,
in
Penney
v.
Little,37
one of
the earliest
cases,
the court said it did not consider itself restricted
to the limits of the common law of
England
as it was
prior
to
i606,
without
subsequent improvements
and
modifications,
"for the
simple
reason that it is more than two hundred
years
behind the
age." Then,
in a case a little
later,
Gerber v.
Grabel,38
the court
accepted
the
English
doctrine in
regard
to ancient
lights
on the
ground
that the
English
common law as it existed
prior
to the
fourth
year
of
James
the First was
adopted by
the
statute,
while
Judge Caton,
in a
separate opinion, expressed
the view that it
was the common law as administered in
England
at the time the
Illinois statute was enacted that was
adopted, although only Eng-
lish statutes
prior
to i606 were included. In Guest v.
Reynolds
39
the doctrine of ancient
lights
was
repudiated
on the
ground
that
it was
inapplicable
to conditions
existing
in
Illinois,
and the court
stated that it was not
authoritatively
settled
prior
to what
period
of time the common law was
regarded
as
adopted.
In
People
v.
Williams
40 the court refers to the statute and
says, "Thereby
the
great body
of the
English
common law
became,
so far as
appli-
8'
14
Bush
(Ky.) I.
37 3 Scam.
(Ill.) 301.
38s Il6.
2I7,
a9 68
Ill. 478.
40
145 Ill.
573.
26
121
THE ENGLISH COMMON LAW IN THE UNITED STATES.
27
cable,
in force in this state."
Finally,
in the Revell
case,41
which
involved the
right
of shore owners to build structures out into the
lake,
the court
says
that the statute
adopts
"the common law as
it existed
prior
to March
24, i606,"
and
that,
"in the absence of
any
statute of the state
changing
the common law in
regard
to
rights
of
riparian
or littoral
owners,
the common law as it then
existed must control."
The
interesting point
to notice in connection with this last
Illinois case referred to
is,
that the
particular
rule
accepted
and
applied,
because a
part
of the common law of
England
as it existed
prior
to
i606,
was in fact settled
by
a decision of the House of
Lords 42 in
1876,
as the
Supreme
Court of the United States
says,43
"after
conflicting
decisions in the courts below."
Apparently,
therefore,
the Illinois court considers the recent decision of the
House of Lords a conclusive determination of the common law as
it in fact existed
prior
to the fourth
year
of
James
the First. It
should be noticed also
that,
in a recent New York
case,44
the
ques-
tion decided in the Revell case is decided
differently, although
the
New York court admits that the constitution of New York
adopted
the common law of
England
as it existed
prior
to the Revolution.
The New York
court, however,
does not base its decision
upon
the
ground
that recent
English
decisions are no
part
of the common
law,
but on the
ground
that the
principle
of the
English
cases is
inapplicable
to conditions
existing
in New York. Yet in a recent
English
case45 the House of
Lords, referring
to the case decided
by
it in
1876, says
that "that decision was arrived at not
upon
English
authorities
only,
but on
grounds
of reason and
principle,
which must be
applicable
to
every country
in which the same
general
law of
riparian rights prevails,
unless excluded
by
some
positive
rule or
binding authority
of the lex
loci,"
and therefore
applies
the rule to Canada. These cases
sufficiently
illustrate the
difficulties of
determining
what the
adopted
common law is and
how it is
discovered,
as well as what
principles
of the common law
the courts
may
consider
applicable
to conditions
existing
in this
41
I77
I1i.
468.
2
Lyon
v.
Fishmongers' Co.,
i
App.
Cas. 662.
43
Shively
v.
Bowlby, I52
U. S.
14.
4
Town of Brookhaven v.
Smith,
i88 N. Y.
74.
45
North Shore
Ry.
Co. v.
Pion, x4
App.
Cas. 620.
122
HARVARD LAW REVIEW.
country.
A common law which is to be the rule of decision until
altered
by
the
legislature ought
not
readily
to be held
inappli-
cable
by
the courts.
It is worth
noticing
also that the law
merchant,
which did not
become a
part
of the common law of
England,
so that it need not
be
proved
as a
foreign law,
until the
eighteenth century,
is never-
theless considered a
part
of the
adopted
common law in this
country.46
It has
already
been noticed that the
Kentucky
and Illinois
courts, although they apparently agree
as to the construction of
the statutes
adopting
the common
law, disagree
as to what the
common law of
conspiracy
was
prior
to i606. In the
Kentucky
case
47
the court
says:
"In the volumes of
Wright
and
Stephen
all the
English
cases cited
on behalf of the Commonwealth are considered and
discussed,
and it
is
very conclusively
shown that
prior
to
1607
there was no such
thing
at the common law as criminal
conspiracy, except
the
confederacy
for
the false and malicious
promotion
of indictments and
pleas,
or for em-
bracery
or maintenance of various
kinds,
and that whatever
may
have
been the dicta of the
judges
who decided
subsequent cases,
or the deduc-
tions drawn therefrom
by
some of the
text-writers,
the cases them-
selves,
for more than two hundred
years thereafter,
do not
support
the
contention made on behalf of the Commonwealth."
On the other
hand,
the Illinois court holds 48 that
by
the
adopted
common law
every conspiracy
which has a
tendency
to
prejudice
the
public
in
general
is a crime. The court
says:
"We must look to the acts of Parliament enacted and to the
judicial
decisions handed down
prior
to the fourth
year
of
James
I for evidence
of what the common law is. An examination of them shows that the
points
made and the conclusion reached
by
the learned
judge
in State
v. Buchanan49 are clear and correct statements of the common law
concerning conspiracy
as it existed at the time from which we
adopted
the same."
In
concluding
our examination of the cases it will be well to
notice the
Maryland
case which is referred to
by
the Illinois court
46 Cook v.
Renick, 9
IIl.
598;
Piatt v.
Eads,
i Blackf.
(Ind.)
8I.
'47 Etna Insurance Co. v.
Cor.,
io6
Ky. 864,
88o.
48
Chicago,
W. & V. Coal
Co., II4
Ill.
App. 75, I04.
'4
5 H. &
J. (Md.) 3I7.
28
123
THE ENGLISH COMMON LAW IN THE UNITED STATES.
29
in the case last referred
to,
because it states the
theory
of the
adoption
of the whole common law in a form which we
might
have
expected
to come across more
frequently,
-
a
theory, however,
which the Illinois court was
hardly justified
in
relying
on for ascer-
taining
the common law
prior
to i606. The court in that case
first
says
that "it is to
judicial
decisions that we are to
look,
not
for the common law
itself,
which is nowhere to be
found,
but for the
evidences of it," and
then,
after
referring
to
English
cases decided
prior
to the settlement of
Maryland, goes
on to
say
that it is a
mistake to
suppose
that later
English
cases
"are
expansions
of the common
law,
which is a
system of principles
not
capable of expansion,
but
always existing,
and
attaching
to whatever
par-
ticular matter or circumstances
may
arise and come within the one or
the other of them. . . . Precedents
therefore
do not constitute the common
law,
but serve
only
to illustrate
principles.
And if there were no other
adjudications
on the
subject
to be
found,
the
judicial
decisions since
the colonization furnish conclusive
evidence,
not
only
of what is now
understood to be the law
of conspiracy
in
England,
so far as these deci-
sions
go,
but
of
what were
always
the
principles
on which that law
rests."
The court then
says
that the section of the
Maryland
Bill of
Rights adopting
the common law of
England
"has no reference to
adjudicattons
in
England
anterior to the
colonization,
or to
judi-
cial
adoptions
here of
any part
of the common law
during
the
continuance of the colonial
government,
but to the common law
in
mass,
as it existed
here,
either
potentially
or
practically,
and as
it
prevailed
in
England
at the time."
If what we have
adopted
is indeed the whole common
law,
or
the common law "in mass," then it
may
well be
that,
rather than to
speak
of a
developing
common
law,
which is in constant
process
of
improvement by
means of the decisions of the courts in all common-
law
jurisdictions,
as is maintained
by
the courts of some of the
states,
it is better and more
logical
to
adopt,
with the
Maryland
court,
the
timeless,
unchangeable, complete,
and
perfect
common
law which exists nowhere.
Then,
in
truth, only
those
cases,
"rightly decided,"
as stated in the
opinion
of the federal court
before referred
to,
would constitute conclusive evidence of the true
common
law;
and no court could content
itself,
in the decision of
any case,
with the
application
of the
easy
rule of stare
decisis,
but
124
HARVARD LAW REVIEW.
must determine each time that the decision to be followed is indeed
rightly
decided and in
harmony
with the true common law.
As has been
previously explained, however,
the constant search
by
the courts for the true common law
(particularly
if it is nowhere
to be
found)
means the elimination of the
principle
of the
authority
of
precedent,
the
distinguishing
characteristic of the
English
com-
mon law. That
principle
of the common law of
England
at least
has been
accepted
and
applied
to such an extent
by
our courts
that,
in most states
to-day, any supposed duty
on the
part
of the courts
continually
to review and
modify
their decisions to
keep
them in
harmony
with a true common law is lost
sight
of in the ever-
present problem
of the
systematic
and consistent
development
of
the law in each state in accordance with common-law
methods,
and the
principle
of stare decisis in
particular.
The
adoption
of the common law of
England
has resulted in the creation in
each state of courts
possessed
of the
power
of
making
and devel-
oping
the law in each state as the
English
courts make it in
Eng-
land,
and not with the
power only
of the courts of the countries
where the civil law or some other
system
of law
prevails.
The
exclusion of the civil law
by
the
adoption
of the common law has
meant that at least. The first
question always
in
every
common-
law
jurisdiction
is the
determination,
with
respect
to
any question,
of the
already
settled law of that
jurisdiction.
If
English
cases
of some
period,
as well as cases
already
decided
by
the courts of
each
state,
are to be
regarded
as
controlling authorities,
it is
impor-
tant that it should be known what those cases are. The
previously
settled law
being ascertained, then,
if the case in hand is not con-
cluded
thereby,
other sources of law
may
be resorted to. But
the fundamental
problem
in each
jurisdiction
is the
systematic,
consistent, and,
so far as
possible,
certain
development
of the law
by
means of the cases decided
by
the courts which make the law
for that
jurisdiction.
So
only
will the law in each state
develop
in accordance with the essential
principles
of the
English
common
law.
Herbert
Pope.
CHICAGO, IL.
30
125
126
127
128
129
130
131
© Jacob Selwood 2010
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identifed as the author oI this work.
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British Library Cataloguing in Publication Data
Selwood, Jacob.
Diversity and difference in early modern London.
1. Cultural pluralism–England–London–History–16th century. 2. Cultural pluralism–England–
London–History–17th century. 3. Cultural pluralism–England–London–History–16th century
Sources. 4. Cultural Pluralism–England–London–History–17th century–Sources. 5. London
(England)–Social conditions–16th century. 6. London (England)–Social conditions–17th
century. 7. London (England)–Social conditions–16th century–Sources. 8. London (England)–
Social conditions–17th century–Sources.
I. Title
305.8’009421’09031-dc22
Library of Congress Cataloging-in-Publication Data
Selwood, Jacob.
Diversity and difference in early modern London / Jacob Selwood.
p. cm.
Includes bibliographical references and index.
ISBN 978-0-7546-6375-1 (hardcover : alk. paper) ISBN 978-0-7546-9986-6
(ebook) 1. Ethnic groupsEnglandLondonHistory16th century. 2. Ethnic groupsEngland
London–History–17th century. 3. Minorities–England–London–History–16th century. 4. Minorities–
England–London–History–17th century. 5. Immigrants–England–London–History–16th century.
6. Immigrants–England–London–History–17th century. 7. Aliens–England–London–History–16th
century. 8. Aliens–England–London–History–17th century. 9. London (England)–Emigration and
immigration. I. Title.
DA676.9.A1S45 2010
305.8009421’09032–dc22
2009035083
ISBN 9780754663751 (hbk)
ISBN 9780754699866 (ebk.II)
132
“English-born Reputed Strangers” 119
concerns. Naturalized strangers, like immigrants` children, were dangerous in so
far as they might be treated as English, evading aliens’ customs duties and trading
on an equal footing with the true subjects of the realm. Equal taxation meant a
loss of revenue. The right to trade as English meant that trade fell into the hands
of strangers, for it was a given that aliens, once naturalized, would remain tied in
affection to their brethren at home and abroad. Such objections to naturalization
implied that true subjecthood could never be granted. Seen hand in hand with the
rejection oI equality Ior the children oI strangers, it also confrmed the primacy oI
English descent as the sole means of granting true belonging.
As in the later years of the Commonwealth, the City continued to protest any
possible favors for strangers or their children, as well as further moves on the
part of the new government in the direction of naturalization. In July 1660 the
lord mayor and aldermen, assembled in the Court of Common Council, petitioned
Parliament asking the House oI Commons to ignore Iurther requests on the part
oI strangers Ior their naturalization. The petitioners asked that the House might
continue to protect the 'birth rights and privileges¨ oI the king`s subjects, granted
them “by the providence and tender care of so many successors of generations”
and to ensure that “the strangers who are now petitioners for it may not share in
them, by an act of naturalization.” The consequences of inaction, they argued,
would be many and dire, not least of which would include a catastrophic loss of
trade for the natural-born English. Once naturalized, strangers “may export our
manufactures on equal terms with us the natives.” As a result, “their relations
beyond the seas in all parts, who formerly bought them of our English factors will
now have them wholly from these new English men.” The true English, and the
kingdom as a whole, 'shall lose all the beneft oI the Ioreign trade.¨
131
The 1660s were, in fact, a mixed bag, bringing new measures for the
naturalization of strangers together with the ongoing exclusion of their English-
born children. A 1662 statute for “preventing frauds and regulating abuses in his
Majesty’s customs” contained a provision that “no children of aliens under the age
of twenty-one years be permitted to be traders or any goods or merchandizes to
be entered in their names.”
132
The full rights of all English-born were, apparently,
open to question in Westminster too, and in a manner that received royal assent.
131
CLRO, CC Jour., vol. 41, fols. 238v–39v. The Commons received a delegation
Irom the City delivering this petition (or one like it) on 3 August 1660. They reIerred it
to committee; see Journal of the House of Commons, vol. 8, p. 111. Statt cites similar
arguments against naturalization made in print during the same year, such as Reasons
Humbly Offered to the Parliament by the Free-Born Merchants of England; To the Right
Honourable the Commons in Parliament Assembled: the Humble Petition of the Native
Merchants of England; The Great Evil of Naturalizing Aliens Discovered by the City’s
Reply to the Aliens’ Petition, cited in Statt, Foreigners and Englishmen, pp. 58–60, 233 n.
66, 67, 68. These denounced the 1657 naturalizations and raised points almost identical to
both the City’s objections of that year and the petition of 1660.
132
14 Car. II c. 11. See Statutes of the Realm, vol. 5, pp. 393–400.
133
134
135
136
137
138
139
140
141
142
143
144
145
146
147
148
149
150
151
152
153
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---
MESSAGE
01' THE
PRESIDENT OF THE UNITED STATES
COMMUNICATED TO THE
TWO HOUSES OF CONGRESS
AT THE
BEGINNING OF THE SECOND SESSION OF THE FORTY-EIGHTH CONGRESS.
t._.t
WASHINGTON:
GOVERNMENT PRIN'l'ING OFFICE.
1884.
Digitized by Google
165
MESSAGE,
To the Oongress of the Unit.ea States:
Since tbe close of your last session tbe American people, in the exer-
cise of tbeir bigllest rigbt of snft"rage, bave cbosen tbeir Chief Magistrate
for tbe four years ensuing.
Wht'n it is remembered tbat at no period in the country'lt hist.ory bas
the long political contest wbich customarily precedes the day of the
national election been waged with greater fervor and intensity, it is
a subj('ct of gf'neral congratulation tbat aftf'r tbe controversy at the
polls was over, and while the slight preponderance by which tbe issne
hall been determined was as yet unascertained, the public pence suffered
no disturbance, but tbe people everywhere patiently and quietly awaited
the result.
Notbing could more strikingly illustrate the temper of tbe American
citizen, his love of order, and bis loyalty to law-nothing could more
signally demonstrate tbe strengtb and wisdom of our political institu-
tions.
Eight years have passed since a controversy concerning tbe result
, of a national election sharply called the attention of tbe Congress to
the necessity of providing more precise and definite regulations for
counting the electoral \"ote.
It is of the gra,-est importance tbat this question be solved before'
conflicting claims to tbe Presidency sllall again distract tbe country,
aud I am persnuded that, by tbe people at large, any of the measures
of relief thus far proposed would be preferred to continued inaction.
. .
Our relations with all foreign powers continue to be amicable.
Witb Belgium a convention has been signed wbereby tbe scope of
present treaties has been so enlarged as to secure to citizens of either
country within tbejurisdiction of tbe other equal rigbts and privileges
in the acquisition and alienation of property. A trade-marks treaty
bas also been concluded.
Tbe war between Cbili and Peru is at an em1. For the arbitration
of tbe claims of American citizens wbo during its continuance suffered
through the acts of the Cbilian autborities a convention will soon be
negotiated.
Digitized by Google
166
2 MESSAGE OF THE PRESIDENT.
The state of hostilities between France and China continues to be an
embarrassing feature of our Eastern relations. The Chinese Govern·
ment has promptly adjusted and paid th(' claims of American citizens
whose property was destroyerl in the recent riots at Canton. I renew
the recommendation of my last annnal message, that the Canton in-
demnity fund be returned to Chiua.
The true interpretation of the recent treaty with that country, per·
mitting the restriction of Ohinese immigration, is likely to be again the
subject of your deliberations. It may be !leriously qnestioned whether
the statute passed at I he last sessiou does not violate thA t.reaty rights of
certain Chinese who left this country with return certificates valid under
the old law and who lIOW seem to he debarrerl from relanding for lack of
the certificates reqnired by the new.
The recent purchase hy citizens of the United States of a large trading
fleet heretofore under the Chinese cOJlsiderably enhanced our
commercial importance in the East. In view of the large lIumbet; of
vessels built or purchased by American citizens in ot.her countries and
exclusin·ly employed in legitimate traffic between foreign ports under
the recognized prot('ction of our flag, it might be well to pro\'ide a uni·
form rule for their registration and documentation, so that the bona jiik
I'I'0perty rights of our citizens thert'in shall be duly evidenced and
guarded.
PUT!lnant to the ad \'ice of the Senate at the last session, I recognized
the flag of the International Association of the Congo as that of a
friendly government, a\'oiding in so doing any pf('judgment of conflict·
ing territorial claims in that region. Subsequently, in execution of the
expressed witlh of the Oongress, I appointed a commercial agent for
the Congo Ballin.
The importance of the rich prospective t.rade of the Congo Valley has
l('d to the gen('ral con\'iction that it shonld be open to all natious
npon equal terms. At an intel'national confereuce for the Ctmsid('ration
of this subject called by the Emperor of Germany, and now in session
at Berlin, delegates are in attendance on behalf of the United States.
Of the results of the conference you will be duly advised.
The Government of Corea has generously aided the efforts of the
United States to secure suitable premises for the use of the
legation. As the comlitions of diplomatic intercourse with Easwrn
nations demand that the legation premises be owned by the represented
power, I advise that an appropriation he made for the acquisition of'
this property by the Government. The United States already possess
valuable premises at Tangier as a gift frOID the Sultan of Morocco. As
is stated hereafter, they ha\'e lately received a· similar gift from the
Siamese Government. The Government of Japan stands ready to pre·
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167
, THE PRESI 3
sent to us extensive grounds at Tokio whereon to erect a suitable
building for the conrt-houlJe, and jail; and similar prh-i1eges
can probably be in Ohina and Persia. The owning of such
premises would not only effect a large saving of the present relltals but
d permit of t ion of extrate ts in those
tries, and wo serve to mai nity of the
ed States.
e failure of C ake appropria representa-
at the antollOl the Khedive serious ern-
barrassmt'nt ill our illtercounle with Egypt; and in view of the neces-
sary intimacy of diplomatic relationship due to the participation of this
Government, as one of the powers, in all matters of administra-
tion there affecting the rights of foreigners, I advise the restoration of
the agency and consulate-general at Cairo on its former l>asis. I do
onceive" it to b Congress that '\teR should
draw altogeth onorable posi ve hitherto
with rei'p{lct t e, or thai citize ublic resid-
r sojourning ul!l hereafter he aid and
ction of a COli entative.
With FIance, the traditional cordial relationship continues. The
colossal statue of Liberty enlightening the World, the generous gift
of the people of France, is expected to reach New York in May next.
I suggest that Congressional action be tal,en in recognition of the spirit
which has prompted this gift, ancI in aid of the timel, completion of
edestal upon be placed.
r relations wi country wllic to our own
of the best e izenship, cout rdial. The
ed Stlltes lun treaties with e German
states, but by reason of the confederation of those states under the
Imperial rule, the of such tft'aties is not as uniform and
comprehensive as tbe interests of the two countrieg require. I propose,
tbereforl', to open negotiations for II single convention of extradition to
embrace all the territory of the Empire.
affords me pIe
nueN to be of
bat our illterc
y character.
eat Britain
e Government as illdicated it to continue
() \'en years tlw p the existing r • at-yo Such
continuance, iu view ot" the of that country to the American
system of States, should in my judgment be favored.
The revolution in Hayti against the established government bas
terminated. While it was in progress it became necessary to enforce
LJ
168
4 - MESSAGE OF THE PRESIDENT.
our neutrality laws by instituting proceedings ngainst individuals and
vessels charged with their infringement. These prosecntions were in
all cases successful.
Much anxiety h!\s lately been displayed by vdorious Europea.u govern-
ments, a.nd especially by the Government of Italy for the abolition of
our import duties upon works of art. It is well to consider whether
the present discritllination in favor of the productions of American
artists abroad is not likely to result., as they themselves seem very
generally to belie'-e it may, in the practical exclusion of our painters
and sculptors from the rich fields for observation, study, and labor
which they have hitherto enjoyed.
There is prospect that the long-pendiug reVISIon of the foreign
treaties of Japan lDay be concluded at a new conference to be held at
Tokio. While this Government fully recogllizes the equal and inde-
pendent station of Japan in the community of nations, it would not
oppose the general adoption of such terms of compromise as Japan •
may be disposed to offer in furtherance of a uniform policy of inter-
course with Western natiom!.
Dnring the past year the increasing good-will between our own Gov-
ernment and that of Mexico has been varionsly manifested. treaty
of commercial reciprocity concluded January 20, 1883, has been ratified,
and awaits the necessary tariff legislation of Cougress to become .effect-
hoe. This legislation will, I doubt not, be among the first measnres to
claim attention.
A full treaty of commerce, navigation, alld consular rights is much
to be desired, and snch a treaty I lut\"e reason to believe that the Mex-
ican Government stands reaely to conclude.
Some embarrassment has been by the failure of Congress
at its last session to pro,-ide means for the due executIOn of the treaty of .
July 29, for tIle resun-ey of the l\lexicall boundary and the reloca·
tion of boundary monllments.
With the Republic of Nicaragua a treaty has been concluded which
authorizes the constrnction by the United States of a calml, railway,
and telegraph Hlle across the Nicaraguan territory.
By the terms of this treaty sixty miles of the rh-er San .Juan, as well
as Lake an inland sea forty miles in width, are to constitute
a part of the projected enterprise.
This leaves for actual canal constrnction seventeen miles on the
Pacific side and thirty-six miles on the Atlautic. To the Uuited States,
whose rich territory 011 the Pa·cilic is fOl' the ol'(linary pllrposes of com-
merce practically cut off from communication by water with the Atlan-
tic ports, the political and commercial advantages of such a project can
scarcely be overestimated.
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169
MESSAGE OF THE PRESIDENT. 5
\
It is believed that when the treaty is laid betore yon the justice and
liberality of its provisions will command approval at home
and abroa<l.
The death. of our representative at Russia while at his post at St.
Petersburg afiordt'd to the Imperial Government a renewed opportunity
to testify its sympathy in a manner befitting the intimate
which has ever marked the intercourse of the two couutlies.
The course of this Government in raising its representation at Bangkok
to the diplomatic rank has evoked from Siam e\"idences of warm friend-
ship and augurs well for our enlarged intercoUl'Iie. The Siamese Gov-
ernment has presented to the United States a commodious mansion and
grounds for the occupancy of the legation, and I sUjZgest that by joint
resolution Congress attE'st its appreciation of tbis generous gift.
This Government has more than once been called upon of late to
take action in fulfillment of its international obligations toward Spain.
Agitation iu the island of Cuba hostile to the Sllanitlh crown baying
been fomented by persons abusing the sacred rights of hospitality
which our territory afiords, the offi('.ers of this Government have been
instructed to exercise vigilance to prevent infractions of our neutral-
ity laws at Key West and at other points near the Cuban coast. I am
happy to say that in the only instance where these precautionary meas-
ures were successfully eluded, the offenders when found in our terri-
tory were subsequently tried and convicted.
The growiug need of close relationship of intercourse and traffic be-
tween the Spauish Antilles and their natural market in the United States
led to the adoption, in January last, of a commercial agreement looking
to that end. This agreement has since been superseded by a more
carefully framed and comprehensive convention, which I shall submit
to the Senate for approval. It has been the aim of this negotiation to
open sucb a favoretl reciprocal exchange of productions carried under
the flag of eith"r country, as to make the intercourse between Cuba
and Porto Rico and ourselves scarcely less intimate than the commer-
cial movement between our domestic ports, and to insure a removal
of tIle burdens on shipping in the Spanish Indies, of which in the past
our ship·owners and ship·masters have so often had cause to complain.
The negotiation of this convention has for a time postponed the prose·
cution of certain claims of our citizens which were declared to be with·
out the jurisdiction of the late Spanish.American Claims Commission,
and which are therefore remitted to diplomatic channels lor adjustment.
The speelly settlement of these claims will now be urged by this Gov·
ernment.
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170
6 MESSAGE OF THE PRESIDENT.
Negotiations for a treaty of commercial reciprocity with the Domini-
can Republic have been successfully concluded, and the result will
shortly be laid before the Senate.
Oertain questions between the United States and the Ottoman Em-
pire still r'3main unsolved. Complaints on behalf of our citizens are
not satisfactorily adjusted. The Porte has sought to withhold from
our commerce the right of favored treatment to which we are entitled
by existing conventional stipulations, and the revision of the tariffs is
unRccomplished.
The final disposition of pending questions with Venezuela has not as
yet been reached, but I have good renson to expect an early settle-
ment, which will provide the means of re-examining the Caracas awards
in conformity with the expressed desire of Congress, and which will rec-
ognize the justice of certain claims preferred against Venezuela.
The Central and South American Oommission appointed by authority
of the act of July 7, 1884, will soon proceed to Mexico. It has been
furnished with instructions which will be laid before you. They con-
tain a statement of the general policy of the Government for enla.rging
its commercial intercourse with American States. The commissioners
have boon actively prt'paring for tlleir responsible task by holding con-
ferences in tile principal cities with merchants and others interested in
Oentral and South American trade.
The International Oonference, lately convened in Washing-
ton upon l,he iuvitation of the Go,-ernment of the United States, was
composed of representatives from twenty-five nations. The confer-
ence concluded its labors on the 1st of November, having with sub-
stantial unanimity agreed upon the meridian of Greenwich as the
starting point whence longitude is to be computed through one hun-
dred and eighty degrees eastward and westward, and upon the adop-
tion, for all purposes for which it may be found convenieot, of a uni·
versal day which shall begin at midnight ou the initial meridian and
whose hours shall be counted from zero up to twenty-four.
The formal report of the transactions of this conference will be here-
after trapsmitted to the Oongress.
This Government is in frequent receipt of invitations from foreign
states to participate in international exhibitions, often of great inter-
est anq importance. Occupying as we do an advanced position in the
worl(l's production, and aiming to seCUl'e a profitable share for our in-
dustries in the gehernl competitive markets, it is a matter of serious
concern that the want of means for participat,ion in tllese exhibitions
should so often exciude our producers from advantages enjoyed by
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171
MESSAGE OF THE PRESIDENT. 7
those of other countries. During the past year the attention of Con·
gress was drawn to the formal invitations in this regard tendered by
the Governments of England, Holland, Belginm, Germany, and Aus·
tria. Executive has iu som., instances appointed honorary com-
missioners. This is, howeyer, a most unsatisfactory expedient, for
without some provision to meet the necessary working expenses of a
commission it can effect little or nothing in behalf of exhibitors. An
international inventions exhibition is to be held in London next May.
This will cover a field of special importance, in which onr country holds
a foremost rank, bnt the Exccnth'e is at present powerless to organize
a proper representation of out' vat'lt national interests in this direction.
I have in severalprc\'iolls messages referred to this It seems
to me that a statnte, giving to the Exeeutive general discretionary au-
thority to accept snch invitations, and to appoint honorary commission·
ers, without salary, allli placing at the disposal of the Secretary of State
a small fund for defraying their reasonable expenses, would be of great
public utility.
This Government has reccind official notice that the Revised Inter-
national Regulations for preventing collisions at sea have beenltdopted
by all the leading maritime powers except the United States, amI came
into force on the 1st of September last. For the due protection of our
shipping interests, the provisions of our statutes should at once be
brought into conformit,Y with these Regulations.
The question of securing to authors, composer8, and artists cop,Y-
right privileges in this cOllntr,Y in return for reciprocal rights abroad
is one that may justl.y challenge your attention. It is true that con-
ventions will be uecessal''y for fully accomplishing this result, but until
Congress shall by ::;tatute fix the extent to which foreign holders of
cOPJI'ight shall be here privileged, it has been lleemed inadvisable to
negotiate such connntions. For this reason the United States were
not represented at the recent conference at Berne.
I recommend that the lSeope of the neutralit.y laws of the United
States be so enlarged as to cover all patent acts of hostility committed
in our territory aUlI aimed against the peace of a fl'iendly nation.
Existing statutes prohibit the titting out of armed expeditions and re-
strict the shipment of explosh'lls, though the enactments in the latter
respect were not framed with regard to international obligations, but
simply tor the protectiou of passenger travel. All these statutes were
intended to meet special emergencies that had already arisen. Other
emergencies have arisen since, and modern ingenuity supplies means
for the organization of hostilities without open resort t.o armed vessels
or to filibustering parties.
2
(
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8 MESSAGE OF THE PRESIDENT.
I see no reason why overt preparations in this country for the com·
mission of criminal acts, such as are here under consideration, should
not be alike punishable, whether such acts are iuteuded to be committed
in our own country or in a foreign country with which we are at peace.
The prompt and thorough treatment of this questiou is one which
intimately concerns the national honor.
Our existing naturalization laws also need revision. Those sections
relating to persons residing within the limits of the United States in
1795 and 1798 have now only a historical interest. Section 2172, rec·
ognizing the citizenship of the children of naturalized parents, is am·
biguous in its terms and partly obsolete. There are special provisions
of law favoring the naturalization of those who serve in the Army or
in merchant vessels, while no similar privileges are granted those who
serve in the Navy or the Marine Corps.
"An uniform rule of naturalization," such as the Constitution contem·
plates, should, among other things, clearly define the status of persons
born within the United States to It foreign power (section 1992)
and of minor children of fathers who have declared their intention to be·
come citizens but have failed to perfect their naturalization. It might
be wise to provide for a central bureau of registry, wherein should be
filed authenticated transcripts of every recor.t of naturalization in the
several Federal and State courts, and to make provision also for the va·
cation or cancellation of such record in cases where fmud had been prac·
ticed upon the court by the applicant himself or where he had renounced
or forfeited his acquired citizenship. A just and uniform law in this
respect would strengthen the hands of"the Government in protecting
its citizens abroad, and would pave the way for the of treat·
ies of naturalization with foreign countries.
The legislation of the last session effected in the diplomatiC and con·
sular service certain changes and reductions which haye been l)roduct·
ive of embarrassment. The population and commercial activity of our
country are steadily on the increase, and are giving rise to new, vary·
ing, and often delicate relationships with other countries. Our foreign
establishment now embraces nearly double the area. of opemtions that
it occupied twenty years ago. The confinement of such a service within
the limits of expenditure then established is not, it seems to mc, in ac-
cordance with true economy. A community of sixty millions of people
should be adequately represented in its intercourse with foreign nations.
A project for the reorganization of the consular scrvice and for recast-
ing the scheme of extraterritorial jurisdiction is now before you. If the
limits of a short session will not allow of its full consideration, I trust
that you will not fail to ma.ke suita.ble provision for the present needs
of the service.
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MESSAGE OF THE PRESIDENT. 9
It has been customary to define in the appropriation acts the rank of
each diplomatic office to which a salary is attached. I suggest that this
course be abandoned and that it be left to the President, with the ad·
vice and consent of the Senate, to fix from time to time the diplomatic
grade of the representatives of this Government abroad as may seem
advisable, provision being definitely made, however, as now for the
amount of salary attached to the respective stations.
condition of our finances. and the operations of the various
branches of the public service which are connected with the Treasury
Department are very fully discussed in the report of the Secretary.
It appears that the ordinary revenues for the fiscal year ended June
30, 1884, were--
From customs .............. " . . . . . . . . . . . . . . . . . . .. '195, 067, 489 76
From internal revenue ..... .. .. . ............... 121, 586, 072 51
}'rom all other sources .............. _ ...... . . . . . . . . 31, 866, 307 65
Total ordinary revenues ................ _ .... 348,519,869 92
--====
The public expenditures during the same period were-
For civil expenses. . . . . . .. ..... _ . . . . . . . . .. ..... '22, 312, 907 71
For foreign intercourse ..... - . . . . .. .. . . . . 1, 260, 766 37
For Indians ... -. . . .... . ..... -..... ... . ........ 6,475,999 29
For pensions .. . .. ................... . .. . . . .. ... . 55, 429, 228 06
For the military establishment, including river and
harbor improvements and arsenals. . . . . .. ... .... 39, 429, 603 36
For the naval establishment, including vessels, mao
chinery, and improvements at navy·yards......... 17,292,601«
For miscellaneous expenditures, including public
buildings, and collecting the revenue. . 43,939, 710 00
For expenditures on account of the District of 00'
lumbia ..... o •••• 0 ••• 0 •••••• _ .•••••• 0 •••••
For interest on the public debt. 0 •••• , ••••••••••
For the sinking fund ........ 0 • • • • • • • •• •• • _ ••••••
Total ordinary expenditures ........ .
3,407,04962
54,578,37848
46,790,229 50
290,916,47383
--------
-------
Leaving a surplus of .. 0 •• • •• 0..... •• 0', •• 57, 603,396 09
As compared with the preceding fiscal year there was a net decrease
of over $21,000,000 in the amount of expenditures. The aggregate
receipts were less than those of the year previous by about '54,000,000.
The falling oft· in revenue from customs made up nearly '20,000,000 of
this deficiency, and about $23,000,000 of the remainder was due to the
diminished receipt:) from internal taxation.
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10 MESSAGE OF THE PRESIDENT.
The Secretary estimates the total receipts for the fiscal year which
will end June 30, 1885, at $330,000,000, and the total expenditures at
in which sum arc included the iuterest on the debt and
the amount payable to the sinking fund. This wonld leave a surplus
for the entire year of about $39,000,000.
The value of exports froUl the United Stlttes to foreign countries duro
ing the year ending June 30, 1884, was as fullows:
Domestic merchamlise ... .
Foreign merchandise ..... .
.
...... a ____ ...... _. __ ... _.'O .......
Total merchandise ..
Specie .............. ,. ............... .. . ........ .
$ i24, 964,
15,548,757
740,513,609
67,133,383
Total exports of merchandise and specie. . . .. ... 807, 646, 992
The cotton aud cotton manufactures included in this statement were
valued at the breadstuffs at $162,544,715; the provisions
at $114,416,547, and the mineral oils at $47,103,218.
During the same period the imports were as follows:
ltIerchandise ...... . . . . . . . . . . . . . . . . . . . . . . ... . . . . . . . .. $1i67, 697, 693
Gold and silver. . . . . . . . . . . . . .. .............•...... . :37, 426, 262
Total ..•. . . . . . . .. .. ... . . . .. .. .. ... . . . . . . . . . . .. 705, 123, 955
More than 63 per cent. of the ent.ire value of imported merchanrlise
consisted of the following articles:
Sugar and molasses ..................... " ........ .
Wool and woolen manufactures. . . . . . . . . .. .. _ .
Silk and its manufactures. . . . . . .. . . . . . . .. .... . .... .
Cotice .. " ...... . .. . .. .. . .. . ..... . . .. . ... .... . ... .
Iron and steel and manufactures thereof ............. .
Chemicals ......... '" .......................... .
Flax, hemp, jnte, atullike substances, and manufactures
thereof ................................ .
Cotton and manufactures of eotton .. ... ...... . ... .
Hides and skins other than fur·skins. . . . . . . . . ....... .
$103,884,274
53,542,292
49,949,128
49,686,705
41,464,599
38,464,965
33, 46:J, 3U8
30,454,476
22,350,906
I concur with the Secretar.y of the ill recommending t.he im·
mediate suspension of tIle coinage of 8ih'er dollarR amI of the issuance
of silver certificates. This is a matter to which, ill former communica·
tions, I have more than onee invoked t,he attention of the National
Legislature.
It appears that. annually tilr the past six years there have been eoined,
ill compliance with the requirements of the act of Feuruary 28, 1878,
more than twenty·se\·en million sil,'er dollars. The number now out·
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MESSAGE OF THE PRESIDENT. 11
standing is reported by the Secretary to be nearly one hundred and
eighty·five million, whereof but little more than forty million, or less
than 22 per cent., are in actual circulation. The mere existence of this
fact seems to m.e to furnish of itself a cogent argument for the repeal
of the statute which has made such fact possible.
But there are other and graver considerations that tend in the same
direction.
The Secretary avows his conviction that unless tbis coinage and the
issuance of silver ce·rtificates be suspended, silver is likely at no distant
day to become our sole metallic standard. The commercial disturbauce
and the impairment of national credit that would be thus occasioued
call scarcely be overestimated.
I hope that the Secretary's suggestions respectiug the withdrawal
from circulation of the one-dollar and two-dollar notes will receive your
approval. It is likely that a considerable portion of the silver now
encumbering the vaults of the Trea8ury might thus find its way into
the currency.
While trade-dollars have ceased, for the present at least, to be an
element of active disturbance in our currency system, some provision
should be made for their surrender to the Government. III view of the
circumstances under which they were coined and of the fact that they
have never had a legal-tender qua.lity, there should be offered for them
only a slight advance over t.heir bullion value.
The Secretary, in the course of his report, considers the propriety of
beautifying the designs of our subsidiary sih'er coins and of so increas-
ing their weight tbat they may bear their due ratio of "alue to the
standard dollar. His conclusions in this regard are cordially approved.
In my annual message of I recommended the abolition of all
excise taxes except those relating to distilled spirits. This recommen-
dation is now renewed. In case these taxes shall be abolished, the
revenues that will still remain to the Government will, in my opinion,
not only suffice to meet its reasonable expenditures, but will afford a
snrplus large enough to permit such tariff re(luctiou as may seem to be
advisable, when the results of recent revenue laws and commercial
treaties shall have shown in what quarter8 those reductions can be
most judiciously effected.
One of the gnwest of the problems which appeal to the wisdom of
Congress for solution is the ascertainment of the most effective means
for increasing our foreign trade and thus relieving tIle depression under
which our industries are now languishing. TIle Secretary of the Treas-
ury advises that the duty of investigating this subject be intrusted in
the first instance to a competent commission. While recogniziug
the considerations that may be urged against this course, I am never-
theless of the opinion that, upon the whole, ·no other would be likely to
effect speedier or better results.
That portion of the Secretary's report which concerns the condition
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12 MESSAGE OF THE PRESIDENT.
of our shiPlling interests cannot fail to command your attention. He
emphatically recommends that as an incentive to the investment of
Americau capital ill American steamships, the Government shall by
liberal paymenttl for mail transportation, or otherwise, lend its acth-e
assistance to individual enterprise, and declares his belief that unless
that conrse be pursued our foreign carrying trade must remain, as it is
to-day, almost exclusl\-ely in the hands of foreigners.
One phase of this subject is now prominent, in view of the
repeal by the act of June 26, of all statutory provisions arbitra-
rily compelling American vessels to carry the maih'! to and from the
United States. As it is to make provision to compensate
owners of such vessels for performing that service after April, 1885, it
is hoped that the whole subject will receh'e early consillp,ration that
willieall to the enactment of such measures for the revival of our mer-
chant marine as the wisdom of Congress may llevise.
The thl'ee per cent. bonds of the Goyernment to the amount of more
thau 8100,000,000 have, since my last aunual message, been retleemed
by the Treasury. The bonds of that issue still outstanding amount
to little over $200,000,000, about one-fourth of which will be retired
through the operations of the sinking fund during the coming year.
As these bonlls still constitute the chief for the circulation of
the national banks, the question how to avert the contraction of the
currency, cansell by their retirement, is one of constantly increasing
importance.
[t seems to be generally conceded that the law governing this matter
exacts from the banks excessive security, and that, upon their Ilresent
bond dellosits, a larger circulation than is now allowed may be granted
with safety. I hope that the bill which passed the Senate at the last
session, permitting the issue of uotes equal to to the faee value of the
deposited bonds, will commend itself to the approval of the Honse of
RepresentatiwtI.
In the expenses of the 'Val' Department the Secretary reports a de-
crease of more than $9,000,000. Of this reduction $5,600,000 was
effected iu the expenditures for rivers and harbors, aDd $2,700,000 in
expenditures for the Quartermaster's Department.
Outside of that Department the annual expenses of all the Army
bureaus proper (except pos8ibly the Ordnance Bm'eau) are substantially
fixed charges, which can not be materially diminished without a change
in the numerical strength of the Army. The expenditures ill the Quar-
termaster's Department can readily be 8uhjected to admiuistrath'e dis-
cretion, anll it is reported by the Secretary of War that as a result of
exercising such discretion, in reducing the number of draught anll pack
animals in the Army, the annual cost of supplying ami caring for such
animals is now $1,108,085.90 less than it was in 1881.
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OF THE PRE 13
The reports of military commanders show that the last year has been
notable for its entire freedom from Indian outbreaks.
In defiance of the President's proclamation of July 1, 1884, certain
intruders sought to make settlements in the Indian Territory. They
were promptly removed b a detaehment of troo s
Dnring the pa 'ongress a bil suitable fire-
oof building f Medical Muse ibrary of the
rgeon-General ved the appro ate. A simi-
bill; reporte( 0 the House ti ves by one
its committee ding before th is hoped that
during the coming session the measure may become a law, and that
thereafter immediate steps may be taken to secure a place of safe de-
posit for these valuable collections, now in a state of insecurity.
The funds with which the works for the improvement of rivers and
harbors were prosecuted during the past ;year were derived from t.he
propriations 0 August 2, 188 ith. such few
lances as were n previous ap The balance
the Treasury uisition July 10,0!H,649.55.
e amount app ng the fiscal y $1,319,634.62,
d the amount the Treasury scal year was
$8,228,703.54, leuvlIIg a balance of $3, I 12,5S0.{i,J 1Il the Treasury.subject
to requisition July 1, 1884.
The Secretary of War submits the report of the Ohief of Engineers
as to the praeticabilityof protecting our important cities on the sea-
board by fortifications and other defenses able to repl'l modern methods
f attaek. The f ha w 'ome when such defense' can be prepared
th confidence not prove abo lell the possi-
e result of del snch prepamt y considered,
lay seems ine;\. the most im -those whose
struction or c be a national adequate de-
ses, inclnsive • be made by xpenditure of
$60,000,000, a sum much less than a victorious enemy could levy as a
contriuntion. An appropriatioll of abont one· tenth of that amount is
asked to begin the work, alill I concur with the Secretary of War in
urging that it be granted.
The War Department
ooth·bore gm
ged steel or
rted within tl
prO\'idi IIg me
th for the pur
vessels.
is proeeeding with
rifles, by lilli
ught·iron. Fi
, however, do
of
t defense aUl
the conversion of lO·inch
with tubes of
be thus con-
the necessity
'ghest power,
aml'nt of war
The report, of the Gun FOllndery Board, appointed April 2, 1883, in
pursuance of the act. of :\Iarch 3, 1883, was transmitted to Oongress in
a special message of February 18, 1884. In my message of March 26,
1884, I called attention to the recommendation of the Board that the
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178
14 MESSAGE OF THE PRESIDENT.
overnment SIl e the product steel works 0
he required III vy cannon, an overnment fae
ries, one for one for the be establishe
r the fabricat om such mater n having bee
aken, the Boar lently reconve ine more full
. the plans and estimatc8 necessary for carrying out its recommendation.
It has recei ved information which indicates that there are responsible
steel manufacturers in this country who, although not provided at
present with the necessary plant, are willing to construct the same and
to make bids for contracts with the Government for the supply of the
equisite mater M'iest guns a( ern warfare, i
guaranteed 0 ent magnitude d by a positiv
ppropriation r a series of' y made by Con
ress. All dou easibility of t thus removed
renew rec that such act by Congress a
will enable the Government to construct its own ordnance upon its
own territory, and so to pro"ide the armaments demanded by consider-
ations of national safety and hOIlor.
The report of the Secretary of the Navy exhibits the progress which
as been made . eel cruisers at he acts of Au
ust 5, 1882, an 883. Of the nder contract
ne, the Chicag IS, is more tha ; the Atlanta
f 3,000 tons, h sfully laullchechiuery is now
tting; the Bo ,000 tons, is r ching, and th
olphin, a disp of 1,50() tons, elivery.
Certain adverse criticisllls upon the desiglis of these cI'\lisel's are dis-
cussed by the Secretar.,-, who insists that the correetness of the conclu-
sions reaclled by the All\"isory Board and the Department has been
demonstrated by reeent developmeuts in ship-building abroarl.
The machinery of the double-turreted monitors Puritan, Terror, and
mphitrite, COl del' the act of 3, is in proces
f construction. .s heen done d t on theiI
rmor for lack ( ry appropriati h monitor, th
Ionadnock, st nfinished at t in California
. is recommelll !:Iteps be take e these vessel
and to provide also an armament for the monitor l\Iiantonomoh.
The recommendatioJls of the Naval Arlvisol'Y Board, appro\'ed by
the Department, comprise the constrllction of one Rtcel cruiser of 4,500
tOilS, olle cruiser of a,ooo tOllS, two gUlluoats, one light
cruising gnnboat, one dispatch-vessel armed with Hotehkiss cannon,
ne armored r torpedo boa al designs, al
f which are ea pet the existi. he service, are
ow well advan cOJlstruction 0 can be under
ken as soon ao tnt the necess
The act of 00 ed August 7, ed the remova
179
MESSA.GE OF THE PRESIDENT. 15
to the United States of the bodies of Lieutenant·Oommander George
W. De Long and his companions of the Jeannette Expedition. This
removal has been successfulJy accomplishetl by Lieutenants Harber and
Schuetze. The remains were taken from their grave in the Lena Delta
in March, 1883, and were retained at Yakutsk until the following winter,
the season being too far advanced to admit of tbeir immediate trans·
portation. They arrived at New York February 20,1884, where they
were received with suitable honors.
In pursuance of the joint resolution of Congress approved February
13, 1884, a na,-al expedition was fitted out for the relief of Lieut. A.
W. Greely, United States Army, and of the party who had been en-
gaged under his command in scientil1c observations at Lady Franklin
Bay. The l1eet consisted of the steam sealer Thetis, purchased in Eng-
land, the Bear, purchased at St. John's, Newfoundland, and the Alert,
which was generously provided b ~ · the British Government. Prepara-
tions for the expedition were promptly made by the Secretary of the
Navy, with the active co-operation of the Secretary of War. Com·
mander George W. Ooffin was placed in command of the Alert, and
Lieut. William H. Emory in command of the Bear. The Thetis W88
intrusted to Commander Winl1eld S. Schley, to whom also was as-
signed the superintendence of the entire expedition.
Immediately upon its arrival at Upernavik, the fleet began the
dangerous navigation of Melville Bay, and in spite of every obstacle
reached Littleton Island on June 22, a fortnight earlier than any vessel
had. before attained that point. On the same day it crossed over to
Oape Sabine, where Lieutenant Greely and the other survivors of his
party were discovered. After taking on board the Ii ,-ing and the bodies
of the dead, t·he relief ships sailed for St. John's, where they arrived
on July 17. They were appropriaooly received at Portsmouth, N. H.,
on August 1, and at New York on August 8. One of the bodies was
landed at the former place. The others were put on shore at Gover-
nor's Islaml, and, with the exception of one which was interred in the
National Cemetery, were forwarded thence to the destinations indicated
by friends. The organization and conduct of this Relief Expedition
reflects great credit upon all who contributed to its success.
In this, the last of the stated messages that I shall have the honor
to transmit to the Congress of the United 8tates, I cannot too strongly
urge upon its attention the duty of restoring our navy as rapidly as
possible to the high state of efficiency which formerly characterized it.
As the long peace that has lulled us into a sense of fancied security
may at any time be disturbed, it is plain that the policy of strengthen.
ing this arm of the service is dictated by considerations of wise
economy, of just regard for our future tranquillity, and of true appre·
ciation of the dignity and honor of the Republic.
The report of the Postmaster· General acquaints you with the present
condition and needs of the postal service.
S
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16 MESSAGE OF THE PRESIDENT.
It discloses the gratifying fact that the loss of r(wenue from the re-
duction in the rate of letter-postage recommended in my message of
December 4, 1882, aOli effected the act of March 3, 1883, has been
much less than was generally anticipated. My reco111lllendation of this
reduction was based upon the belief that the adual falling off' in reo
ceipts from letter-postages for the year immediately succeeding the
change of rate would be $3,000,000. It has pro\'ed to be only $2,275,000.
This is a t.rnstworthy indhlation that tlle revenue will soon be restored
to its fOl'mer volume by the natural increase of sealell correspondence.
I confidently i't'peat, therefore, the recomlllendation of my last anllual
message that tbe single-rate postage upon chop letters be reduced to
one cent the payment of two ccnts is JlOW required by law.
The double mte is only exac:ted at offic(>s whel'e the ca1'1'ier system is
in operation, and it appeal'S that. at. those offices the increase iu the
tax upon local letters defrays the cost not only of its own collection
alld delivery, but of the colledion and dcliveryof all other mail mat-
ter. This is an inequa\it..y that ought 110 longer to exist.
I approve the recommenllatioll of the Postmaster-General that the
unit or weight in the rating of first-class matter !!!hould be one onnce
instead of one-half ounce as it now is. In view of the stati!!!tics fur-
nished by the Department it may well be doubted whethet· the change
would result in allY loss of rm"enuej that it would greatly promote the
convenience of the public is beyond dispute.
The free-delivery system has beelliately applied to five cities, and the
totlll number of' offices in which it is now in operat.ion is one handred
and fifty-nine. Experience shows that ih; adoption, untler proper con-
ditions, is equally all accolUllIodation to the public ami an advantage
to the postal sen'ice. It is more than self-sllstainiug, and for the rea-
sons urged by the Postmaster-General mlly properly be extended.
In the opinion of that officer it is importa.nt to pI'oville means whereby
exceptional dispatch in dealing with letters in free-delivery offices
may be secured by payment of extraordilla.f'y postage. 'fhis scheme
might be made effective by employment of a special stamp whose cost
should be COllllllemmrate with the expeuse of the extra service.
In some of the large cities private compltnies have under-
taken to outstrip the Goverument mail-carriers by affording, for the
prompt transmission of letters, better facilities than have hitherto been
at the comma.nd of the Post-Office.
It has always been the policy of the Government to discourage such
l>nterprh;es, amI in no better Illode can that policy be maintained than
ill snpplying the public with the most efficient mail service that, with
due regard to its own best interests, can be furnished for its accommo-
dation.
The Attorney-General renews the reconnl1Cndatioll contained in his
report of last year touching the fees of witnesses -and jurors.
Ue favors radical changes in the fee bill, the adoption of a system by
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MESSAGE OF THE PRESIDENT. 17
which attome.ys and marshals of the United StateR shall he compen-
sated solely by salaries, and the erection by tbe Go,-ernment of a peni-
tentiary for the confinement of offenderK against. its laws.
Of the ,'a.ried governmental concerns in chnrge of tlle Interior De-
partment, the report of its Secretary presents an interesting summary.
Among the topics deserving part.icular attention I refer you to his
observations respecting our Indian affairs, t.he pre-emption nnd timber-
culture acts, the failure of railroad to take title t.o lands
granted by tbe Government, and the operations of the Pensioll Office,
the Patent Office, the Censlls Bureau, amI the Bureau of Education.
Allusion bas been made already to tlle circumstance that, both as
between the different Indian tribes and as between the Indians and the
whites, the past year has been one of unbroken peace.
In this circumstance the President is glad t.o find justification for the
policy of the Government in its dealing with the Indian question, and
confirmation of the views which were fully expressed in his first com-
municati.on to the F.orty·sel"enth Congress.
Tbe Secretary urges anew t.he enactment .of a statute f.or tbe punish-
ment of crimes committed on the Indian reservations, and recommends
the passage of the bill n.ow pending in the H.ouse .of Representatives for
the purchase .of a tract .of 18,000 square miles from the Si.oUX .reserva-
ti.on. B.oth these measures are worthy of approval.
I c.oncur with him also in advising the repeal .of the pre-empti.on law,
tlle enactment of statuteK res.oh-ing the llreRent legal c.omplications
touching lapsl'd grants to railroad companies, and the funding of the
debt of the se'reral Pacific railroads muter Knch guaranty aR shall effectu-
ally secure its ultimate payment.
The report .of the Utah Commission will bu read with interest.
It. discl.oseR the results of recent legislation looking t.o the prevention
anll punishmc.nt of in that Territ.ol',\-. I still believe that if
that ab.ominable practice can be snppreKRed by ln.w it call only be by the
most radical legislation consistent with the restraints ofthe Constituti.on.
I again recommend, therefore, that Congress assume absolute politi-
cal control .of the Territory of Utah, anll provide for the appointment
of commissi.oners, with RIWh governmental powerK as in its judgment
may justly allll wisely be put into their hands.
In the course of this communication refel'ence has m.ore than once
been made t.o the policy of this GO\-ernmellt l\R regards the extension
of our foreign trade. It seems pr.oper to declare the general principles
that should, in my opinion, underlie our nati.onal efforts in this direc-
tion.
The main c.onditions of the problem may be thus stated:
We are a people apt in mechanical pursuits anll fertile in invention;
we cover a VlUlt extent of territory rich in agricultural prollucts and in
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18 MESSAGE OF THE PRESIDENT.
nearly all the raw materials necessary for snccessful manufactnre; we
have a system of productive establishmentH more than sufficient to
supply our own demands; the wages of labor are nowhere else so great;
the scale of H,?ing of our artisan classes is such as tends to secure their
personal comfort aud the development of those higher moral and intel-
lectual qualities that go to the making of good citizens. Our system
of tax and tariff legislation is yielding a revenue which is in excess of
the present needs of the Government.
These are the elements from which it is sought to devise a scheme by
which, without lInfiLVorably changing the condition of the workingman,
our merchant marine slmll be raised from its enfeebled condition and
new markets provide!l for the sale, beyond our bOl'ders, of the manifold
fruits of our industrial enterprises.
The problem is complex, and can be solved by no single measure of
inno\'ation or reform,
The countries of the American continent and the adjacent islands are
for the United States the natural marts of snpply and demand. It is
from them that we should obtaiu what we do not produce or do not
produce ill snfficiency, and it is to them that the surplus productions
of our fields, Ollr mills, and our workshops slJOuld flow, under conditions
that will eqmtlize or favor them in comparison with foreign competition.
Four paths of policy seem to point to this end.
First, a series of reciprocal commerchtl tl'eaties with the countries of
America which shall foster between llS and them an unhampered move-
ment of trade. The conditions of these treaties should be the free
admission of such merchandise as this country does not produce, in
return for the admission free or under a fa,vored scheme of duties, of
our own products-the benefits of such exchange to apply only to goods
carried under the flag of the parties to the contract; the removal, on
both sides, from the vessels so privileged of all tonnage dues and
national imposts so that those vessels may ply unhindered between our
ports and those of the other contracting though without in-
fringing on the reser\'ed home coasting trade; the removal or reduc-
tion of burdens on the exported products of thoMe countries coming
within the benefits of the treaties; and the avoidance of the technical
restrictions and penalties by which our intercourse with those countries
is at present hampered.
Secondly, the establishment of the consular service of the United
States on a salaried footing, thus permitting the relinquishment of con-
sular fees not only as respects vessels under the national flag, but also
as respects vessels of the treaty nations carrying goods entitled to the
benefits of the treaties,
Thirdly, the enactment of measures to favor the constructiou and
maintenance of a steam carrying marine under the flag of the United
States.
Fourthly, the establishment of an uniform currency basis for the
countriel of America, 10 that the coined products of our mines may
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183
THE PRESI 19
circulate on equal terms throughout the whole system of common wealths.
This would require a monetary union of America, whereby the output
of the bullion-producing countries and the circulation of those which
yield neither gold nor silver could be adjustt'd in conformity with the
lation, wealth I cial needs of h A any of the
tries furnish n e common stoc production
r mines and m us be utilized ken toward
eneral remon I ver.
the accomplis se ends, so fa be attained
parate treati , iations alread and now in
progress have been directed, and the favor which this enlarged policy
has thus far received warrants the belief that its operations will ere
long embrace all, or nearly all, the countries of this hemisphere.
It is by no means desirable, however, that the under consid-
eration should be applied to these countries alone. The healthful en-
ment of our t ope, Asia, and d be sought
ducing tariff ch of their wa we nor the
l' American S d to produce abling our-
s to obtain in er market fo of food, of
materials, and 'actures in wh
It seems to me that many of the embarrassing elements in the great
national conflict between protection and free trade may thus be turned
to good account-that the revenue may be reduced so as no longer to
overtax the people, that protective duties ma,y be retained without be-
coming burdensome, that our shipping interests may be judiciously en-
aged, the curl' firm bases, an ch an unity
terests establ the states of system as
be of great a sing advantag
I treaties in th policy which gotiated or
u process of n tain a provisi be requisite
un er the clause ution limiting e of Repre-
sentatives the authority to originate bills for raising revenue.
On the 29th of February last I transmitted to the Congress the first
annual report of the Civil Service Commission, together with commu-
nications from the heads of the several Executive Departments of the
ernment, resp ctical working nder which
Commission ha . The good 1 foreshad-
have been 10 zed.
e system has ed the expec friends in
ring competen public serva tecting the
appointing officers of the Governmer!t from the pressure of personal
importunity and from tlIe labor of examining the claims and preten-
ijions of rival candidates for public employment.
The law has had the unqualified snpport of the President and of the
heads of the several Departments, and the members of the Commission
LJ
184
20 MESSAGE OF THE PRESIDENT.
have performed their duties with zeal and fidelity. Their report will
shortly be submitted, and will be a,ccompanied by such recommenda-
tions for enlarging the scope of the flxisting statute as shall commend
themselves to the Executive and the Oommissioners charged with ita
administration.
In view of the general and persistent demand throughout the com-
mercial community for a national bailkrupt law, I hope that the differ-
enCE'S of sentiment which have hitherto prevented its enactment may
not outlast the present session.
The pestilence which for the past two years has been raging in the
countries of the East recently made its appearance in EJIropean ports
with which we are in constant commuuication.
The then Secretary of the Treasnry: in pllrsuance of a proclamation
of the President, issued certa.in regulations restricting, amI for a time
prohibiting, the importation of rags and the admission of baggage of
immigrants and of travelers arriving from infected quarters. Lest this
course may ha'"e been without strict warrant of law, I approve the
recommendation of the prescnt Secretar.," that the Congress take action
in the premises, and I also recommend the immediate adoption of such
measures as will be to ward off the dreaded epidemic, and to
mitiga,te its in caRe it. shall unhappily extend to our shores.
The annual report of the COlllmissionl'I's of the District of Oolllmbia
reyiews the operations of the several departments of its municipal gov·
ernment. I ask careful consideration of its suggestions in respect
to commending lIuch as relate to a reyision of the
civil and criminal codl', the performance of labor by persons sentenced
to imprisonment ill the jail, the construction and occupation of wharves
along the river front, amI the erection of a suitable bnilcling for Dis-
trict offices.
I recommend that, in recognition of the eminent services of Ulysses
S. Grant, late General of the Armies of the United States and twice
President of this nation, the Congrc>ss cOllfl'r upon him n suitable pen-
sion.
Oertain of the measures that seem to me necessary and expedient I
have now, ill obedience to the Constitntion, reeommeJl(lerl for your
adoption.
As respects oUlers of no less importallce, I shall content myself with
renewing the recommendations already made to the Oongress, without
restating the grounds upon which sueh recommendations were based.
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185
lfESSAGE 01<' THE PRESIDENT. 21
The preservation of forests on the public domain, the granting of
Government aid for popular education, the ameudment of the Federal
Oonstitutiou so as to make effective the disapproval by the President
of particular items in appropriatiou bills, the enactment of statntes in
regard to the filling of vacancies in the Presidential office, and the de-
termining of vexed questions respecting Presidential inability are meas-
ures which may justly receive your serious consideration.
As the time thaws nigh when I am to retire from the public service,
I cannot refrain froUl expressing to the members of the National Legis-
lature with whom I have been brought into personal and official inter-
course my sincere appreciation of their unfailing courtesy and of their
harmonious co-operation with the Executive in so many measures cal-
culated to promote the bel!lt interests of the Nation.
And to my fellow-citizens generally I acknowledge a deep sense of
obligation for the support which they have accorded me in my admin-
istration of the Executive Department of this Government.
OHESTER A. ARTHUR.
WASHINGTON, December 1, 1884.
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Breckinridge Long – A “Natural Born Citizen” Within the Meaning of the Constitution
Page 1 of 10
I S MR. CHARLES EVANS HUGHES A “NATURAL
BORN CI TI ZEN” WI THI N THE MEANI NG OF THE
CONSTI TUTI ON?

Chicago Legal News, Vol. 146-148, pp. 220-222
Author: Br eckin r id ge Lon g (1881-1958)

A Lega l Exa m in a t ion of t h e Su bject by Br eckin r id ge Lon g, of t h e St . Lou is Ba r .
Whether Mr. Hughes is, or is not, a “natural born” citizen within the meaning of the
Constitution, so as to make him eligible or ineligible, to assume the office of President,
presents an interesting inquiry.
He was born in this country and is beyond question “native born.” But is there not a
distinction between “native born” and “natural born”? At the time he was born his father and
mother were subjects of England. His father had not then been naturalized. The day after Mr.
Hughes was born his father had a right, as an English subject, to go to the British consul, at
New York, and to present his wife and infant and to claim any assistance he might need from
the consul as the representative of the English government.
If war had broken out between this government and England this government would have
had a right to interne the father, the mother and the son as subjects of an enemy power.
The Constitution of the United States puts a particular qualification upon those who shall
become President and Vice-President. For all other offices it requires that they be “citizens of
the United States,” but for the Presidency and Vice-Presidency it requires that they be
“Natural Born citizens.” The word “natural” means “of the nature of”; “naturally a part of”;
“by the laws of nature an integral part of” a system. Following that line of thought, a “natural
born” citizen would be one who was naturally, at his birth, a member of the political society;
naturally, a part of the political system into which he was born; by the laws of nature a citizen
of the society into which he was born. It would mean, further, that no other government had
any claim upon him; that his sole allegiance was to the government into which he had been
born and that that government was solely, at the time, responsible for his protection. “Native
born” does not mean quite the same thing. He might be born in a country under conditions
similar to the conditions under which Mr. Hughes was born, and subsequently become a
citizen of that Country. In that case, after he became a citizen, he would be a “native born”
citizen, but he would not have been a “natural born” citizen. From the instant of his birth this
government would not be solely responsible for his protection.
Mr. Hughes was born before the adoption of the Fourteenth Amendment to the Constitution,
so the status of his citizenship must be considered as under the laws existing prior to the time
of the adoption of that Amendment.
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The only reference in the Constitution to the subject (except that Section specifying the
qualifications for President) is that Congress shall have the power to make uniform laws to
provide for naturalization. Congress under that authority enacted the following law: “The
children of persons who have been duly naturalized under any law of the United States, being
under the age of twenty-one years at the time of the naturalization of their parents, shall, if
dwelling in the United States, be considered as citizens thereof.” That Statute says that
children born of persons who have been duly naturalized become citizens, but become so by
virtue of the act of the parent. That is, they become naturalized citizens. They are citizens by
operation of law. They were not born so, but, because of the act of their father, are invested
with all the rights of citizens. If they are born in this country and their father subsequently
becomes naturalized, they then, upon the naturalization of the father, become citizens. After
becoming citizens they are “native born” citizens; but they are not “natural born citizens.”
That is, they are not born, in the nature of things and by the laws of nature, a citizen of this
Republic. If the father becomes naturalized before the birth of the child and is at the time of
the birth of the child a citizen of the United States, then the child is a “natural born” citizen.
But in the case of Mr. Hughes the father was not naturalized at the time the son was born, and
was at that time a subject of England. How could the son be a “natural born” citizen of the
United States? If you had been born in England of American parents, would it be necessary
for you to be naturalized if you came to this country to reside? No. If he, born in this country
of English parents, had returned to England to reside, would it have been necessary for him to
be naturalized there? No. If it was not necessary for him to be naturalized in England, would
he be a “natural born citizen” of the United States?
The Statute above referred to announced the law of this country to be that the children of
persons who should be naturalized became citizens by virtue of the act of their father. And
obversely, that they were not to be considered as citizens until their father was naturalized.
“…The naturalization of the father operates to confer the municipal right of citizenship upon
the minor child…” (Secretary Blaine, February 1
st
, 1890.)
It is admitted that the legal status of the child, under the circumstances we have to deal with,
is not explicitly defined by the Statutes. But any question which the reading of the Statute
does not clear up is elucidated and illuminated by the courts (113 U.S. Supreme Court 94
infra) and by official documents written by men in authority and vested with the
administration of the law.
In this connection it will be pertinent to make a few illusions to the recommendations made
to Congress urging them to clarify the situation. President Arthur, in his Fourth Annual
Message, in 1884, said: “Our existing naturalization laws also need revision. * * * Section
2172, recognizing the citizenship of the children of naturalized parents, is ambiguous in its
terms* * *.
“An uniform rule of naturalization, such as the Constitution contemplates, should, among
other things, clearly define the status of persons born within the United States subject to a
foreign power and of minor children of fathers who have declared their intention to become
citizens* * *.”
President Cleveland, in his First Annual Message, in 1885, said: “The laws of certain states
and territories admit a domiciled alien to the local franchise conferring upon him the rights of
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citizenship to a degree which places him in the anomalous condition of being a citizen of a
state and yet not of the United States within the purview of Federal and International law.”
The United States Supreme Court has said: “The existing provisions leave much to be desired
and the attention of Congress has been called to the condition of the laws with reference to
the election of nationality; and to the desirability of a clear definition of the status of minor
children whose fathers had declared their intention to become citizens * * *.” (143 U.S. 178.)
Again the United States Supreme Court says, in the same case: “clearly minors acquire an
inchoate status by the declaration of intention on the part of their parents. If they attain their
majority before the parent completes his naturalization, then they have an election to
repudiate the status which they find impressed upon them, and determine that they will
accept allegiance to some foreign potentate or power rather than hold fast to some citizenship
which the act of the parent has initiated for them.”
These opinions indicate where the doubt and uncertainty may be.
On the other hand, Willoughby, in his work on the Constitution (Vol. I, page 283), makes the
positive statement that: “The naturalization of a father operates as a naturalization of his
minor child, if they are dwelling in the United States.
We find the positive declaration of the court that the “citizenship of the father is that of his
child.” (1 Ruling Case Law, 796.) There is no dispute on the facts that the father in 1862 was
an English subject. There can hardly be, under the law just quoted, any dispute that Mr.
Hughes was at the time of his birth an English subject. If he was at that time an English
subject, he became a citizen of the United States by a process of naturalization, and is not a
“natural born” citizen of the United States. He became a citizen by virtue of the subsequent
act of his father. He became a citizen by operation of law, but he was not at the instant of
birth, by right and of the nature of things, a “natural born” citizen of the United States.
And, Willoughby, further on, says: “A declaration of a father of an intention to become
naturalized gives to his children, who attain their majority before their father’s naturalization
is complete, an inchoate citizenship which, upon majority, may be repudiated.”
These point clearly to the fact that the child of un-naturalized parents is an alien and that he
becomes a citizen by virtue of the subsequent act of the father. That is, that the child is a
naturalized citizen; that he becomes a citizen by operation of law and that he is not a “natural
born” citizen within the meaning of the Constitution.
It might be supposed that the Statute above quoted applies to children born in foreign
countries and brought to the United States by the father. A careful reading of the Statute will
permit of no such discrimination and, directly on that point, is a document written by Mr.
Fish, when Secretary of State, under date of February 11
th
, 1874, in answer to an official
inquiry. The document reads as follows: “The laws of the United States on the subject of
naturalization provide, in relation to persons situated as your sons are ‘that the children of
persons duly naturalized under any law of the United States * * * being under the age of
twenty-one years, at the time of their parents being so naturalized, or admitted to the rights of
citizenship, shall, if dwelling in the United States, be considered as citizens of the United
States.’ Assuming that your three sons were born in France * * * accompanied you to this
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country and have continued to reside here, they, together with your son born here, are, under
the provisions just cited, to be considered, when dwelling in the United States, citizens of the
United States. * * *”
It will be noted that the eminent Secretary of State not only drew no distinction between the
children born abroad and the child born here, but that he included all together in the same
category and as to be considered, when dwelling in the United States, as citizens of the United
States. What would happen if they did not dwell within the United States? What would
happen if the father took them back to the country from which he emigrated? Under the
Statute, and under the opinion just cited interpreting the Statute, they would, in that case, not
be citizens of the United States; and if they were not to be considered citizens of the United
States, when they left the boundaries of the United States, how could they be “natural born”
citizens of the United States who would owe allegiance to no other power and who would have
a right to the protection of this Government no matter where they might find themselves?
The Supreme Court of the United States has construed that Statute and the Constitution, and
has passed directly on the point in issue. It has said that one born of alien parents in the
territorial limits of the United States is not a “natural born citizen” within the meaning of the
presidential qualification clause and, further, said that “such (persons) not being citizens can
only become citizens * * * by being naturalized in the United States.” (Elk v. Wilkins, 112 U.S.
94.) Such naturalization can be accomplished by the son on his own account or through the
subsequent act of the parent.
Mr. Blaine, as Secretary of State, in an official document to the United States Minister to
Germany, again, under date of February 1
st
, 1890, construed the law pointing out the status of
the child if it left the United States. The facts in that case were as follows: A husband and wife,
both natives of Prussia, came to the United States. A son was born in the State of
Pennsylvania six months before the naturalization of the father. Later the father died and the
mother returned to Germany, taking her son with her, and they were residing in Germany at
the time of the inquiry.
While in Germany, that Government made some claim upon the son for military service, and
a ruling was requested from the Secretary of State. Mr. Secretary Blaine wrote as follows:
“’The words, ‘if dwelling in the United States,’ whether meaning residence at a particular
moment or contemplating a settled abode, apply to Carl Heisinger, who, being now nineteen
years of age, has for about eleven years been dwelling in Germany. It is not known that the
government of that country has made any claims upon him. But, if the German Government
should, under a provision of law similar to that in force in the United States in relation to the
foreign-born children of citizens, seek to exact from him the performance of obligations as a
natural-born subject, the Department would be bound to consider the provisions of Section
2172 of the Revised Statutes.”
Mr. Blaine’s reference to Section 2172 of the Revised Statutes means that this Government
would recognize that child as a citizen of the United States if he lived in the United States, but
would not recognize him as a citizen of this country if he lived in Germany. Was that boy “a
natural born” citizen of the United States? If he was, then why would not the government of
the United States recognize him as a citizen of the United States whether he were in Germany,
England or China? The only conclusion is that he was not a “natural born” citizen of the
United States; that some other government beside that of the United States had some claim
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upon his allegiance; that he was not exclusively and by operation of the laws of nature a
citizen of the United States.
The boy that Mr. Blaine referred to in the above quotation was not only born in this country
but born to a male parent who had not only expressed his desire to become an American
citizen, but who had proceeded to perfect his naturalization and who actually was naturalized
six months subsequent to the birth of the child. The rulings under the statute hold that the
child became a citizen of the United States by virtue of the naturalization of his father, but
that his citizenship during his minority, was only inchoate and that if he continued to reside
in the United States he would be recognized as a citizen of the United States (not a “natural
born” citizen) but that if he went to Germany he would not be, by our Government,
considered one of its citizens. How does this case differ from that of Mr. Hughes except in
this: that Mr. Hughes and his parents continued to reside in this country? Their domicile
affected his citizenship. Had they taken him back to England, he would not have been
considered by the government of the United States as a citizen of the United States. The mere
circumstances that he continued to live here, and, upon the attainment of his majority, to
exercise his political rights perfected the inchoate citizenship which he inherited by the
naturalization of his father. Only from the time of the actual naturalization of his father was
he considered to be a citizen of the United States, and only upon the adoption of the
Fourteenth Amendment did he actually become a citizen of the United States. But what was
the status of that boy at the time of his birth, and immediately following his birth? The
government of England might have exercised jurisdiction over him. That government had
some claim which, under certain conditions, it might have exercised. Had he been a “natural
born” citizen of the United States, no government on earth, but that of the United States,
would have had any claim upon his allegiance. The law of England at the time of his birth was
“once an Englishman, always an Englishman.” Not until 1872 did England change that law.
It must be admitted that a man born on this soil, of alien parents, enjoys a dual nationality
and owes a double allegiance. A child born under these conditions has a right to elect what
nationality he will enjoy and to which of the two conflicting claims of governmental allegiance
he will pay obedience. Now if, by any possible construction, a person at the instant of birth,
and for any period of time thereafter, owes, or may owe, allegiance to any sovereign but the
United States, he is not a “natural born” citizen of the United States. If his sole duty is not to
the United States Government, to the exclusion of all other governments, then, he is not a
“natural born” citizen of the United States.
The doctrines of dual citizenship and of double allegiance are too well known and too well
founded in international law to be doubted or disputed.
“The doctrine of ‘Election’ necessarily implies the existence of a double allegiance. This
condition naturally arises where a person is born in one country to a father who is a citizen of
another country. By rules of municipal law, which generally prevail, such a person has
citizenships by birth—(1) citizenship by virtue of the place of birth (jure soli) and (2)
citizenship by right of blood (jure sanguinis) i.e., by virtue of the father’s nationality. Unless
this be so, the child on attaining his majority has nothing to elect.” (Moore, International Law
Digest, III, 524-525.)
The subject of double allegiance and dual citizenship is a well recognized doctrine of
international law, and one with which all nations have to deal. The question has been
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presented many times and in many different ways to the government of the United States.
That it has taken official cognizance of the existence of double allegiance is not only not
questioned, but is too well known to need references. It may, however, be elucidated by citing
a few of the instances.
An application was made for a passport for a youth of seventeen, whose father desired to send
him to Germany as a student. Mr. Freslinghuysen, then Secretary of State, in regard to him,
wrote the following: “The young man referred to, under the Constitution of the United States,
having been born in this country, is, while subject to the jurisdiction of the United States, a
citizen of the United States, notwithstanding the fact of his father being an alien. As such
citizen he is entitled to a passport. This, of course, would be a sufficient protection to him in
every other country but that of his father’s origin—Germany. There, of course, as the son of a
German subject, it may be claimed that he is subject to German military law, and that, not
being then subject to the jurisdiction of the United States, he cannot claim the rights secured
to him, etc.” (Moore, International Law Digest, III., 532.)
That young man had a divided allegiance. A double allegiance necessarily implies a divided
allegiance. His allegiance is not exclusively to one country or to one flag, and a man born with
a double allegiance cannot be a “natural born” American.
Again, Mr. Gresham, Secretary of State, held that: “While a person born in the United States,
though of alien parents, is by the laws thereof a citizen, yet, should he be taken by his parents
while a minor to the country of which they are subjects, he becomes amenable to the laws of
that country and subject to a claim of allegiance thereunder jure sanguinis.” On this ground
the Department of State refused to issue a passport for the protection of a minor, born in the
United States, whose parents proposed to return with him “for a brief period” to the country
(Russia) of which they were subjects. (March 9
th
, 1893.)
How could the government of the United States refuse the issuance of a passport to a “natural
born” citizen under those circumstances? That child was not considered a “natural born”
citizen of this country, and yet his parents proposed to return with him to the country from
which they had emigrated only “for a brief period.”
In 1866 a son was born in the State of Massachusetts to a father who was a Frenchman. In
1885, he, the parent, went back to France with him family, including his son, then nineteen
years of age. Two years later the son was notified to perform military duty and, on failing to
respond, was arrested and imprisoned. He appealed to the government of the United States,
through the American Ambassador in France. Mr. Bayard, the Secretary of State at that time,
instructed the American Embassy to use “its good offices” to obtain the young man’s release
from military service, but added: “You will, however, advise him that his remaining in France
after he becomes of age may be regarded as an election of French nationality and that his only
method of electing and maintaining American nationality is by a prompt return to this
country.” (December 28
th
, 1887.)
All these young men were born in the United States, but had the right to elect whether they
should be a citizen of a foreign country or a citizen of this country. If they had the right to
elect to which government they would pay allegiance, they were not exclusively the subjects of
this country; they were not “natural born” citizens of this country.
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Again, a citizen of Prussia immigrated to the United States and had a son born to him. Later
he returned to Germany, with his family, including the son. On reaching the military age, the
son was called upon by the German government to perform military duty. The father invoked
the intervention of the American Legation at Berlin. In that case it was held that the son,
being a minor, acquired, under the laws of Germany, the nationality of his father, but did not
thereby lose his right to claim American nationality, and that, upon attaining his majority, the
son might, at his own election, return and take the nationality of the place of his birth, or
remain in Germany. But that, during his minority and while domiciled with his father in
Germany, he must submit himself to the claim of military duty on the part of the German
Government. (Edwards Pierrepont, Attorney-General, and U.S. Grant, 15 Op. 15.)
The only difference in the case of Mr. Hughes and in the case of the subject above examined,
is that Mr. Hughes’ father did not take him back to England. But if he had, the English
Government would have had a claim upon him, which they might have exercised, and if the
English Government did have a claim upon him, then the United States did not have exclusive
jurisdiction over him and he did not owe to the United States exclusive allegiance and he was
not a “natural born” citizen within the meaning of the Constitution because he was not
naturally a part of the Government under the jurisdiction of which he happened to be born.
Particularly is this so in view of the declaration of Mr. Porter, Acting Secretary of State, under
date of September 14
th
, 1885, when he says: “By the law of nations an infant child partakes of
his father’s nationality and domicile.”
It is not disputed that Mr. Hughes is not a citizen of the United States, but if he had the right
to elect, he must have had something to choose between. He was native born because he was
born in this country, and he is now a native born citizen because he is now a citizen of this
country; but, had he been a “natural born” citizen, he would not have had the right to choose
between this country and England; he would have had nothing to choose between; he would
have owed his sole allegiance to the government of the United States, and there would have
been no possible question, whether he found himself in the United States or in any other
country in the world, that he would be called upon to show allegiance to any Government but
that of the United States.
That it was the intention of the men who framed the Constitution to provide that no person
should be President except those who were naturally a part of this government can hardly be
doubted by an examination of documents contemporary with the framing of the Constitution.
It was originally proposed in the Constitutional Convention that the presidential
qualifications be a “citizen of the United States.” It was so reported to the Convention, by the
Committee which had it in charge, on the 22
nd
day of August, 1787. It was again referred to a
Committee, and the qualification clause was changed to read “natural born citizen,”and was
so reported out of Committee on September the 4
th
, 1787, and adopted in the Constitution.
There is no record of debates upon the subject, but the Federalist contains a contemporary
comment on it written by Alexander Hamilton. It reads: “Nothing was more to be desired,
than that every practicable obstacle should be opposed to cabal, intrigue, and corruption.
These most deadly adversaries of Republican government, might naturally have been
expected to make their approaches from more than one quarter, but chiefly from the desire in
foreign powers to gain an improper ascendant in our councils. How could they better gratify
this, than by raising a creature of their own to the chief magistracy of the Union?”
(Federalist, LXVIII.)
193
Breckinridge Long – A “Natural Born Citizen” Within the Meaning of the Constitution
Page 8 of 10
The interpretation of their position, as expressed in the Federalist, is corroborated by Mr.
Story, in his work on the Constitution, in the following words: “It is indispensable, too, that
the president should be a natural born citizen of the United States * * * . The general
propriety of the exclusion of foreigners, in common cases, will scarcely be doubted by any
sound statesman. It cuts off all chances for ambitious foreigners, who might otherwise be
intriguing for the office; and interposes a barrier against those corrupt interferences of
foreign governments in executive elections, which have inflicted the most serious evils upon
the elective monarchies of Europe.” (Story on the Constitution, Vol. 2, page 353-54.)
Of course, these articles are not used with the idea of suggesting that Mr. Hughes’ affiliations
and sympathies and present allegiance are to any government but to that of the United States.
Any such idea is disclaimed. They are used, however, to show the reason that underlay the
constitutional provision requiring a person to be a “natural born” citizen if he would assume
the presidency of the United States. If, with full knowledge of the meaning of the phrase
“natural born,” the framers of the Constitution used those words to express a certain idea and
to necessitate a certain qualification, then their meaning is the law of the land. That they did
use them is undoubted; that they knew what they were writing hardly seems possible to
doubt, in view of the contemporary expressions on the subject and the actual change in the
phraseology of the proposed constitution.
The records of the Constitutional Convention of 1787, the Federalist, Story, the eminent
commentator on the Constitution, all agree that only a “natural born citizen” should ever
become President of the United States.
The Supreme Court of the United States, several Presidents of the United States, numerous
Secretaries of State and an Attorney-General, each vested with authority in connection with
the law, have commented upon and interpreted the only existing statute in such words as to
disqualify from the presidency a person born under such circumstances as surround Mr.
Hughes’ birth on the ground that he is not a “natural born citizen” of the United States.
Take one more authority. In view of the military draft proposed in 1862, on account of the
Civil War, under the head of “aliens,” it was declared by the government at Washington that
the following persons were exempt from draft for military service in the armies of the United
States: (1) All foreign born persons who have not been naturalized; (2) All persons born of
foreign parents and who have not become citizens. (Papers relating to foreign affairs, 1862, p.
283.) The very year Mr. Hughes was born, the government to which he now pays allegiance
officially recognized that it had not the right to call his father to defend the flag and that it had
not the right to call him to defend the flag. The government he now aspires to preside over
classed him under the general head of “Aliens” the year he was born and drew a line of
distinction between him and “natural born citizens”—between him and those to whom it
owed protection and from whom it had a right to claim protection.
Is Mr. Hughes a “natural born citizen” of the United States?



194
Breckinridge Long – A “Natural Born Citizen” Within the Meaning of the Constitution
Page 9 of 10
Abou t Br eckin r id ge Lon g ( 18 8 1-1958 )
An affluent Democrat from Missouri whom FDR appointed ambassador to
Italy in 1933, Breckenridge Long was born in St. Louis in 1881 and studied
at Princeton University and Washington University Law School. After
receiving his law degree, Long deepened his involvement in Democratic
politics, both in Missouri and elsewhere, and in 1917 he was rewarded with
an appointment to the position of third assistant secretary of state.
Long remained with the State Department until 1920 when he resigned his
position to run for the U.S. Senate from Missouri. Losing the election, Long
was also defeated in a second bid for the Senate in 1922. Notwithstanding his electoral
setbacks, Long remained an avid supporter of Democratic candidates and contributed
generously to FDR's 1932 campaign, earning himself the Italian ambassadorship in the
process.
Long returned to private life after three years at the embassy in Rome, only to rejoin the State
Department in 1940 at which time he assumed supervision over the Department's Immigrant
Visa Section – a position Long would use to impede the ability of J ews and other victims of
Nazi persecution to seek refuge in the United States.
Eleanor Roosevelt, who received an avalanche of petitions from Europeans desperate to flee
German occupation, had a tense relationship with Long. ER found him not only
unsympathetic but also opposed to the policies she supported and, as much as possible, she
tried to work around Long (through working with Sumner Welles or appealing to FDR
directly) to respond to the petitioners. Long left the State Department in 1944 and died in
1958.


Sou r ces :
The Concise Dictionary of American Biography. vol. I. 5
th
ed. New York: Charles Scribner's
Sons, 1997, 745.
Dallek, Robert. Franklin Roosevelt and American Foreign Policy, 1932-1945. New York:
Oxford University Press, 1980, 66-67, 125-126, 446-448.
Lash, J oseph. Eleanor and Franklin. New York: W.W. Norton & Company, 1971, 667.

Abou t Ch ica go Lega l News , Co.
In 1868, Myr a Colby Br a d well started the “Chicago Legal News.” In her weekly newspaper,
she wrote about Illinois state court decisions, session laws, and legal reforms. Myra also
reported on federal court decisions and legislative news. Her paper was a huge success and
became the most widely-read legal newspaper in the country.

195
Breckinridge Long – A “Natural Born Citizen” Within the Meaning of the Constitution
Page 10 of 10
In 1869, Mrs. Bradwell passed the Illinois Bar Exam with honors. Her qualifications were
approved by a prominent judge and a states attorney. With their encouragement, she went on
to obtain her law license, yet she never did practice law.
Mrs. Bradwell was well-established in the newspaper industry, and doing quite well, when, in
1880, she was admitted to the Illinois state bar. In 1882, she was also admitted to the United
States Supreme Court bar. Despite becoming an attorney, Bradwell died at the age of 63 in
1894 without ever having practiced law in the court system.
The Chicago fires of 1871 destroyed her offices, but she rebuilt her empire. After Myra
Bradwell's death, her daughter, Bessie, continued publication of the newspaper until 1925.
###


196
                       ALLAN BENNY v. WILLIAM J.
O'BRIEN.
                            [NO NUMBER IN ORIGINAL]
                            NEW JERSEY SUPREME
COURT
            58 N.J.L. 36; 32 A. 696; 1895 N.J. Sup.
Ct. LEXIS 62; 29
                                    Vroom 36
                            February 1, 1895,
Argued
                             June 15, 1895, Decided
DISPOSITION:     [***1]  Reversed.
HEADNOTES
   Persons born in the United States of parents who
are domiciled here are
citizens of the United States, and of the state
wherein they reside. Children
born of persons resident here in the diplomatic
service of foreign governments
are excepted.
COUNSEL: For the relator, Charles C. Black.
For the defendant, Thomas F. Noonan.
JUDGES: Before BEASLEY, CHIEF JUSTICE, and Justice
VAN SYCKEL. The opinion of
the court was delivered by VAN SYCKEL, J.
OPINION BY: VAN SYCKEL
197
OPINION
    [*36]  In error to the Hudson Circuit.
   The opinion of the court was delivered by
[**697]  VAN SYCKEL, J. The
question in this case is whether the contestant,
Allan Benny, or William J.
O'Brien is entitled to a seat in the board of
councilmen of the city of Bayonne.
[*37]  I see no reason to dissent from the finding
of fact by the court below,
which was that each candidate had received an equal
number of votes. One of the
votes cast and counted for Benny, it is admitted,
was voted by himself, and that
vote the court below refused to count, on the
ground that Benny was not entitled
to the elective franchise.
   The facts are undisputed. Allan Benny was born
in the city of Brooklyn in
1867, and has lived in the city of Bayonne, in this
state, continuously since
1868.
   His parents came from Scotland to this country
in 1855, and have continued to
reside here since that time. His father declared
his intention to become a
citizen, in December, 1893,  [***2]  but has not
been naturalized.
   Allan Benny has voted at every election held in
Bayonne since he became
twenty-one years of age.
   The question presented is whether a person born
in this country of alien
198
parents, who prior to his birth had their domicil
here, is a citizen of the
United States.
   In Lynch v. Clarke, 1 Sandf. Ch. 583, Vice-
Chancellor Sandford, after an
exhaustive discussion of the subject, declared that
every person born within the
dominion and allegiance of the United States was a
citizen thereof. This
decision was rendered in 1844, before the adoption
of the fourteenth amendment
to the constitution of the United States.
   That amendment, passed in 1865, provides "that
all persons born or
naturalized in the United States and subject to the
jurisdiction thereof, are
citizens of the United States, and of the state
wherein they reside."
   In 1884, in Re Look Tin Sing, in the Circuit
Court of the United States, Mr.
Justice Field held that a person born within the
United States of Chinese
parents residing therein, and not engaged in any
diplomatic or official capacity
under the emperor of China, is a citizen of the 
[***3]  United States. 10 Sawy.
353, 21 F. 905.
   Some expressions of Mr. Justice Gray, in Elk v.
Wilkins, 112 U.S. 94, 28 L.
Ed. 643, 5 S. Ct. 41, appear to be in conflict with
the views of Mr.  [*38]
Justice Field in the case above cited, and upon the
authority of that case the
court below rejected the ballot of the plaintiff in
error.
199
   Elk v. Wilkins related to the status of the
Indians, who have always been
regarded as a class by themselves, and the first
section of the Civil Rights act
of April 9th, 1866, which declares that "all
persons born in the United States
and not subject to any foreign power, excluding
Indians not taxed, are citizens
of the United States," had a controlling effect in
the decision of the case.
   Indians not taxed are excluded by that act from
deriving any right to
citizenship through birth, and can become citizens,
as Justice Gray observed,
only by naturalization.
   That this case has not been understood to be
inconsistent with the views of
Mr. Justice Field, in 10 Sawy. 353, 21 F. 905, is
evinced by the fact that the
latter case has been repeatedly approved and
followed in the federal courts
since the promulgation [***4]  of Justice Gray's
opinion in Elk v. Wilkins. Re
Chin King, 13 Sawy. 333, 35 F. 354; Re Wy Shing, 13
Sawy. 530, 36 F. 553; Re
Yung Sing Hee, 13 Sawy. 482, 36 F. 437; Re Gee Fook
Sing, 49 F. 146.
   All white persons, or persons of European
descent who were born in any of the
colonies, or resided or had been adopted there
before 1776, and had adhered to
the cause of independence up to July 4th, 1776,
were, by the declaration,
invested with the privileges of citizenship.
   Since that time the right to citizenship has
been derived through birth or
200
naturalization.
   It is manifest, therefore, that those whose
ancestors came to this country
since the adoption of the federal constitution in
1789, can establish their
right to citizenship only by showing that such
ancestors were naturalized,
unless the right to citizenship can be acquired by
birth in this country.
   Such a rule would disfranchise a large number of
persons born in this country
whose parents, or even grandparents, were born here
of alien parents.
   I think it is clear that it will never be
conceded by our government that
such persons are subject to any foreign
[***5]   [*39]  power, so as to exclude
them from the right to citizenship intended to be
conferred upon persons born in
this country, by the first section of the Civil
Rights bill of April 9th, 1866,
hereinbefore referred to.
   The language used in this act is, "born in the
United States and not subject
to any foreign power." The words of the fourteenth
amendment are, "born in the
United States and subject to the jurisdiction
thereof."
   These provisions, by implication, concede that
there may be instances in
which the right to citizenship does not attach by
reason of birth in this
country. Two facts must concur. The person must be
born here and he must be
subject to the jurisdiction of the United States
201
according to the fourteenth
amendment, which means, according to the Civil
Rights act, that the person born
here is not subject to any foreign power.
   Allan Benny, whose parents were domiciled here
at the time of his birth, is
subject to the jurisdiction of the United States,
and is not subject to any
foreign power. The right of our government to his
allegiance, on the one hand,
and its duty to protect him, on the other hand,
cannot be denied if, in any
case, birth here is to be of controlling [***6] 
force under the aforesaid act
and  [**698]  amendment, for, in the absence of
their provisions, children born
here of parents who are citizens are themselves
citizens in virtue of their
birth.
   Persons intended to be excepted are only those
born in this country of
foreign parents who are temporarily traveling here,
and children born of persons
resident here in the diplomatic service of foreign
governments. Such children
are, in theory, born within the allegiance of the
sovereign power to which they
belong or which their parents represent.
   The object of the fourteenth amendment, as is
well known, was to confer upon
the colored race the right of citizenship. It,
however, gave to the colored
people no right superior to that granted to the
white race. The ancestors of all
the colored people then in the United State were of
foreign birth, and could not
have been naturalized or in any way have become
202
entitled to the right of
citizenship. [*40]  The colored people were no more
subject to the jurisdiction
of the United States by reason of their birth here
than were the white children
born in this country of parents who were not
citizens.
   The same rule must be applied to both races, 
[***7]  and unless the general
rule, that when the parents are domiciled here
birth establishes the right to
citizenship, is accepted, the fourteenth amendment
has failed to accomplish its
purpose and the colored people are not citizens.
The fourteenth amendment, by
the language, "all persons born in the United
States and subject to the
jurisdiction thereof," was intended to bring all
races, without distinction of
color, within the rule which prior to that time
pertained to the white race.
   In my opinion, therefore, Allan Benny is a
citizen of the United States in
virtue of his birth here of alien parents who at
the time of his birth were
domiciled in this country.
   The judgment of the court below should be
reversed; the vote being a tie,
neither candidate was elected.
203
7 FAM 1116.2 "Subject to the Jurisdiction" of the United
States
7 FAM 1116.2-1 Subject at Birth to U.S. Law
(TL:CON-64; 11-30-95)
a. Simply stated, “subject to the jurisdiction” of the United States means subject to the
laws of the United States.
b. In U.S. v. Wong Kim Ark , 169 U.S. 649 (1898), the U.S. Supreme Court examined at
length the theories and legal precedents on which the U.S. citizenship laws are based and,
in particular, the types of persons who are subject to U.S. jurisdiction. After doing so, it
affirmed that a child born in the United States to Chinese parents acquired U.S. citizenship
even though the parents were, at the time, racially ineligible for naturalization. The Court
concluded that:
The 14th Amendment affirms the ancient and fundamental rule of
citizenship by birth within the territory, in the allegiance and under the
protection of the country, including children here born of resident aliens,
with the exceptions or qualifications (as old as the rule itself) of children
of foreign sovereigns or their ministers, or born on foreign public ships, or
of enemies within and during a hostile occupation of part of our territory,
and with the single additional exception of children of members of the
Indian tribes owing direct allegiance to their several tribes. The
Amendment, in clear words and in manifest intent, includes the children
born within the territory of the United States, of all other persons, of
whatever race or color, domiciled within the United States.
c. Pursuant to this ruling, it has been considered that:
(1) Acquisition of U.S. citizenship generally is not affected by the fact that the parents
may be in the United States temporarily or illegally; and that
(2) A child born in an immigration detention center physically located in the United
States is considered to have been born in the United States and be subject to its
jurisdiction. This is so even if the child’s parents have not been legally admitted to the
United States and, for immigration purposes, may be viewed as not being in the United
States.
7 FAM 1116.2-2 Officers and Employees of Foreign Embassies and
Consulates and their Families
(TL:CON-64; 11-30-95)
a. Under international law, diplomatic agents are immune from the criminal jurisdiction
of the receiving state. Diplomatic agents are also immune, with limited exception, from the
civil and administrative jurisdiction of the state. The immunities of diplomatic agents extend
to the members of their family forming part of their household. For this reason children born
in the United States to diplomats to the United States are not subject to U.S. jurisdiction
and do not acquire U.S. citizenship under the 14th Amendment or the laws derived from it.
204
U.S. Department of State Foreign Affairs Manual Volume 7 - Consular Affairs
7 FAM 1110 Page 1 of 13
7 FAM 1100
ACQUISITION AND RETENTION OF
U.S. CITIZENSHIP AND NATIONALITY
7 FAM 1110
ACQUISITION OF U.S. CITIZENSHIP BY
BIRTH IN THE UNITED STATES
(CT:CON-314; 08-21-2009)
(Office of Origin: CA/OCS/PRI)
7 FAM 1111 INTRODUCTION
(CT:CON-314; 08-21-2009)
a. U.S. citizenship may be acquired either at birth or through naturalization
subsequent to birth. U.S. laws governing the acquisition of citizenship at
birth embody two legal principles:
(1) Jus soli (the law of the soil) - a rule of common law under which
the place of a person’s birth determines citizenship. In addition to
common law, this principle is embodied in the 14th Amendment to
the U.S. Constitution and the various U.S. citizenship and
nationality statutes.
(2) Jus sanguinis (the law of the bloodline) - a concept of Roman or
civil law under which a person’s citizenship is determined by the
citizenship of one or both parents. This rule, frequently called
“citizenship by descent” or “derivative citizenship”, is not embodied
in the U.S. Constitution, but such citizenship is granted through
statute. As U.S. laws have changed, the requirements for
conferring and retaining derivative citizenship have also changed.
b. National vs. Citizen: While most people and countries use the terms
“citizenship” and “nationality” interchangeably, U.S. law differentiates
between the two. Under current law all U.S. citizens are also U.S.
nationals, but not all U.S. nationals are U.S. citizens. The term “national
of the United States”, as defined by statute (INA 101 (a)(22) (8 U.S.C.
1101(a)(22)) includes all citizens of the United States, and other persons
who owe allegiance to the United States but who have not been granted
the privilege of citizenship.
205
U.S. Department of State Foreign Affairs Manual Volume 7 - Consular Affairs
7 FAM 1110 Page 2 of 13
(1) Nationals of the United States who are not citizens owe allegiance
to the United States and are entitled to the consular protection of
the United States when abroad, and to U.S. documentation, such as
U.S. passports with appropriate endorsements. They are not
entitled to voting representation in Congress and, under most
state laws, are not entitled to vote in Federal, state, or local
elections except in their place of birth. (See 7 FAM 012; 7 FAM
1300 Appendix B Endorsement 09.)
(2) Historically, Congress, through statutes, granted U.S. non-citizen
nationality to persons born or inhabiting territory acquired by the
United States through conquest or treaty. At one time or other
natives and certain other residents of Puerto Rico, the U.S. Virgin
Islands, the Philippines, Guam, and the Panama Canal Zone were
U.S. non-citizen nationals. (See 7 FAM 1120.)
(3) Under current law, only persons born in American Samoa and
Swains Island are U.S. non-citizen nationals (INA 101(a)(29) (8
U.S.C. 1101(a)(29) and INA 308(1) (8 U.S.C. 1408)). (See 7 FAM
1125.)
c. Naturalization – Acquisition of U.S. Citizenship Subsequent to
Birth: Naturalization is “the conferring of nationality of a State upon a
person after birth, by any means whatsoever” (INA 101(a)(23) (8 U.S.C.
1101(a)(23)) or conferring of citizenship upon a person (see INA 310, 8
U.S.C. 1421 and INA 311, 8 U.S.C. 1422). Naturalization can be granted
automatically or pursuant to an application. (See 7 FAM 1140.)
d. “Subject to the Jurisdiction of the United States”: All children born
in and subject, at the time of birth, to the jurisdiction of the United States
acquire U.S. citizenship at birth even if their parents were in the
United States illegally at the time of birth.
(1) The U.S. Supreme Court examined at length the theories and legal
precedents on which the U.S. citizenship laws are based in U.S. v.
Wong Kim Ark, 169 U.S. 649 (1898). In particular, the Court
discussed the types of persons who are subject to U.S. jurisdiction.
The Court affirmed that a child born in the United States to Chinese
parents acquired U.S. citizenship even though the parents were, at
the time, racially ineligible for naturalization.
(2) The Court also concluded that: “The 14th Amendment affirms the
ancient and fundamental rule of citizenship by birth within the
territory, in the allegiance and under the protection of the country,
including children here born of resident aliens, with the exceptions
or qualifications (as old as the rule itself) of children of foreign
sovereigns or their ministers, or born on foreign public ships, or of
enemies within and during a hostile occupation of part of our
206
U.S. Department of State Foreign Affairs Manual Volume 7 - Consular Affairs
7 FAM 1110 Page 3 of 13
territory, and with the single additional exception of children of
members of the Indian tribes owing direct allegiance to their
several tribes. The Amendment, in clear words and in manifest
intent, includes the children born within the territory of the United
States, of all other persons, of whatever race or color, domiciled
within the United States.” Pursuant to this ruling:
(a) Acquisition of U.S. citizenship generally is not affected by the
fact that the parents may be in the United States temporarily
or illegally; and that
(b) A child born in an immigration detention center physically
located in the United States is considered to have been born
in the United States and be subject to its jurisdiction. This is
so even if the child’s parents have not been legally admitted
to the United States and, for immigration purposes, may be
viewed as not being in the United States.
(3) “Blue List” Cases – Children of Foreign Diplomats: 7 FAM
1100 Appendix J (under development) provides extensive guidance
on the issue of children born in the United States to parents serving
as foreign diplomats, consuls, or administrative and technical staff
accredited to the United States, the United Nations, and specific
international organizations, and whether such children are born
“subject to the jurisdiction of the United States.”
f. Questions: Guidance should be sought from the Bureau of Consular
Affairs (CA) when issues not addressed in this subchapter arise.
(1) Posts abroad should consult your counterpart in the Directorate of
Overseas Citizens Services, Office of American Citizen Services and
Crisis Management (CA/OCS/ACS), which may consult with the
Office of Policy Review and Inter-Agency Liaison (CA/OCS/PRI) if
necessary and appropriate;
(2) Passport agencies and centers should consult the Directorate of
Passport Services, Office of Legal Affairs and Law Enforcement,
Legal Affairs Division (CA/PPT/L/LA) (CAPPTAdjQ@state.gov).
7 FAM 1112 WHAT IS BIRTH “IN THE UNITED
STATES”?
(CT:CON-314; 08-21-2009)
a. INA 101(a)(38) (8 U.S.C. 1101 (a)(38)) provides that “the term ‘United
States,’ when used in a geographical sense, means the continental
United States, Alaska, Hawaii, Puerto Rico, Guam, and the Virgin
Islands of the United States.”
207

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